Restraint in the Use of Deadly Force
A Preliminary Study
By Anthony J. Pinizzotto, Ph.D., Edward F. Davis, M.A., Shannon B. Bohrer, M.B.A., and Benjamin J. Infanti, M.A.
Occasionally, news articles and television reports bear banner headlines claiming a general and widespread use of excessive force by America’s law enforcement officers.1 Some radio commentators and citizens participating in call-in programs claim to know of an increase in such incidents. Further, scholarly articles have addressed the issue.2 And, in fact, documented cases do exist of officers using excessive, even deadly, force. However, is this presumption of widespread force overstated?
The authors do not intend to justify or even attempt to explain away any use of excessive force in law enforcement. Excessive—specifically, unnecessary, unwarranted, and disproportionate—force is both unlawful and unethical and has no place in the American justice system.
Rather, the authors intend to reflect their discussions with thousands of police officers throughout the country over the past 30 years while teaching, conducting research, and engaging in consultations on various cases regarding the use of force—to include deadly force—in law enforcement.3 In some instances, officers used force; in others, they had it used against them, at times resulting in serious injuries and even deaths. In addition to speaking to the officers who took part in situations involving force, the authors also interviewed many of the suspects and offenders in these cases.
The authors’ experiences have revealed that a large number of officers have been in multiple situations in which they could have used deadly force, but resolved the incident without doing so and while avoiding serious injury. This led to an important issue. The authors know how many individuals officers justifiably kill each year (on average, approximately 385).4 However, the authors do not have even an estimate of the number of times officers legally and ethically could have used deadly force but did not. Therefore, they will discuss preliminary data regarding the issue of restraint in the use of deadly force within the law enforcement profession.
THE DEADLY MIX
The authors conducted their original research on law enforcement safety while active members of the FBI, assigned either at its headquarters in Washington, D.C., or at the FBI Academy’s Firearms Training Unit or Behavioral Science Unit in Quantico, Virginia.5 This research resulted in three publications. The first, Killed in the Line of Duty, in 1992, was a national study that examined 51 incidents in which an officer was feloniously killed in the line of duty.6 The second study, In the Line of Fire, in 1997, examined 40 incidents of serious assaults on law enforcement officers.7 In 2006, the final publication, Violent Encounters, expanded the scope of the first two studies and focused on specific topical issues regarding the use of force in law enforcement.8
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Dr. Pinizzotto, a retired FBI senior scientist, is a clinical forensic psychologist who privately consults for law enforcement and other criminal justice agencies.
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Mr. Bohrer, a retired Maryland State Police sergeant and range master for the Maryland Police and Correctional Training Commissions, is a self-employed law enforcement instructor and consultant.
Each study within this law enforcement safety trilogy, as well as subsequent articles the authors wrote using data from these studies, focused on some aspect of what they termed “the deadly mix”—that is, the dynamic interaction of the officer, the offender, and the circumstances that brought them together.9 Any encounter where an officer was assaulted or killed transpired in a dynamic, evolving scene that included the perceptions of the officer and the offender. As they interacted, both persons altered these perceptions and the concomitant interpretations. And, based on those assessments of one another’s behaviors, each acted accordingly. At that moment, the fluid movement of the deadly mix—set in motion when the offender and officer came together—began to shift. All of this occurs within only seconds, but has life-altering consequences. This concept of the deadly mix might shed light on the circumstances in which officers, although legally and ethically justified to use deadly force, did not.
The following real-life scenarios can be considered in two ways: 1) as examples of the dynamic and fluid movement of the deadly mix and 2) as a possible model for examining apparently similar situations in which some officers are killed and others are not. In the first case example, the offender was arrested for feloniously killing a law enforcement officer during a traffic stop. When the authors interviewed this subject, he claimed that another officer stopped him in a similar traffic incident 1 week prior to the killing. Similarities and differences in these two cases in the mind of the offender are significant to the authors’ discussion of the deadly mix.
In the first incident, the traffic stop took place at night. The offender had committed an armed robbery earlier that evening and did not know whether the officer had notified the dispatcher prior to the stop. When the officer activated the emergency lights, the subject knew that if he waited for two more blocks to pull over, he would come to a darker area with fewer streetlights. So, he continued to drive in spite of the officer now engaging the siren. When the offender finally pulled over, he saw “that the officer was looking directly at me and was talking on the radio at that point. I had a gun under the front seat of the car, but I knew he was watching me, so I didn’t move.”
As the officer exited his vehicle, the offender noticed that he “had his hand on his gun.” The offender explained, “I knew that he could pull his gun faster than I could get to mine…so I decided to wait and see what was going to happen.” The officer told the subject to “remain in the car and keep your hands on the steering wheel.” This was said “in a voice that I knew he meant what he said.”
The officer asked the offender why he did not pull over immediately, and the subject said that he “didn’t know you wanted me to pull over.” The officer told him that he stopped him because his left brake light did not work. After the offender produced a valid driver’s permit and registration, the officer simply told him to “have that light fixed” and returned to his police vehicle.
When the authors questioned the subject, he stated that he felt the officer was in complete charge of the incident. The offender believed that if he “had gone for my gun, he would have killed me. And that wasn’t worth it…even if it meant going to jail.”
The subject described himself as a predator and claimed that he “was looking for an opportunity to assault the officer who stopped” him. What did the officer do or not do that prevented an assault? The traffic offense that the officer acted on—a broken left brake light—was minor, but the officer never reduced his awareness of anything that might happen when making the stop. As the offender stopped his vehicle, he saw the officer watching him while talking on the radio. Although this officer notified the dispatcher of the stop, he did not become distracted from observing the actions of the driver.
As the officer exited the patrol vehicle, he continued to watch the subject. He placed his hand on his weapon while approaching the stopped car. The officer strengthened his position of authority by immediately issuing a command to “remain in the car and keep your hands on the steering wheel.” The manner and voice inflection used by the officer convinced the driver to look for an easier victim and not try to retrieve his gun from under the seat, even if it meant going to jail that night.
The second incident involving this offender, which resulted in the death of an officer, also occurred during a traffic stop at night. The subject had reported a history of carrying concealed weapons throughout his adolescent and adult life. He also had a past arrest for using a firearm in the commission of a crime and had served time in prison.
An officer operating radar pulled him over for speeding. At the time of the traffic stop, the subject was transporting marijuana and cocaine in amounts that would have resulted in an arrest and a possible felony conviction. In addition, a warrant had been issued for him due to a parole violation. As soon as the officer engaged the emergency lights, the offender pulled to the side of the roadway. Believing that the officer was aware of the warrant, the offender thought, “If they catch me with drugs, I’m in for a long time.” As he looked in his rearview mirror, he “saw the officer get his hat on and pick up something from the seat and get out of the car…but he wasn’t watching me.” While continuing to observe the officer, the offender simultaneously took his own weapon from under the car seat and prepared to shoot the officer as he approached his vehicle. In the offender’s words, “I believed I could get him before he knew I had a gun.” His assessment proved accurate.
The victim officer in this case had made several traffic stops for excessive speed while operating radar. In each instance, he issued a traffic citation and released the driver without incident. The offender, who exceeded the speed limit by 12 miles per hour, drove by the officer. When the officer activated the emergency lights, the offender immediately pulled to the side of the road and stopped. Did the officer reduce his level of awareness because of the appearance of immediate compliance? No one ever will know. The offender intently watched the officer and noticed that he not only did not use his radio but was not closely watching him. Therefore, the subject removed his gun from under the seat.
The offender saw the officer pick up something from the seat, exit the patrol vehicle, and walk toward his car. During the approach, the subject noticed that the officer continued not to look at him. The offender acted on his observations and lowered the driver’s side window. As the officer arrived at the window, the offender shot and killed him before he could make any statement to the driver. The object the subject saw the officer pick up from the seat was a ticket book. Responding officers found the victim’s service weapon in his holster when they arrived at the scene.
Application and Analysis
“The concept of the deadly mix—with its emphasis on the dynamic interaction of the officer, the offender, and the circumstances that brought them together—can provide insight into restraint in the use of deadly force.”
The two case examples involved traffic stops made at night on the same offender. In each incident, the offender assessed both the circumstances of the stop and the behaviors of the officers.
Was the offender accurate in his assessment of the two officers in these traffic stops? In the authors’ past articles, they continually reported that officers might do everything they were trained to do in a situation, yet possibly be feloniously killed.10 The circumstances at the scene of these traffic stops varied by location, lighting, and traffic; each of these factors had an impact on the offender’s decision to assault or not. Use of alcohol or other drugs during a particular incident also can affect offenders’ ability to make an accurate assessment. Killed in the Line of Duty featured the following statement:
Overall, it is clearly an oversimplification to say one error or mistake caused a law enforcement officer’s death. Some of the killers in the study appear to have evaluated a series of actions or inactions of the officer before considering an assault on the officer [emphasis added].11
In the two case examples, the same offender considered both actions and inactions of the officers before deciding what to do. This discussion does not suggest that in the second of the two cases the officer was killed because he made a mistake. Rather, consistent with the theory of the deadly mix, an examination of this incident suggests that the death resulted from a confluence of several factors, to include the perceptions and behaviors of the officer, the perceptions and behaviors of the offender, and the circumstances that brought the two together.
The feloniously killed officer had stopped a number of cars that night without incident. As other officers related, he only sporadically advised the dispatcher of the cars he pulled over depending on the number and frequency of his stops, as well as availability of radio traffic. He had effected an arrest earlier in the evening for a DUI without incident. However, in this case, he was unaware of the outstanding warrant on the driver, the offender’s possession of drugs, and the presence and availability of the weapon. Additionally, the subject stated that he “was sure I could get away with this” because the officer “didn’t look like he was paying any attention to what I was doing.”
The results of the three studies on law enforcement safety have been applied to various areas of law enforcement training, supervision, and investigation. Specific topics include suicide by cop; the role of perception of both the officer and the offender, to include memory and recall; implications for interviewing officers and offenders in use-of-force situations; personality aspects of offenders; postassault trauma; encounters with a drawn gun; searches; off-duty performance; backup; protective body armor; and mind-sets of officers and offenders.
Use of Restraint
The concept of the deadly mix—with its emphasis on the dynamic interaction of the officer, the offender, and the circumstances that brought them together—can provide insight into restraint in the use of deadly force. An example of an officer encountering two subjects in a traffic stop combines the principles of the deadly mix with the officer’s ability to read and react to a dynamic set of circumstances that, in turn, influences the decision as to the use of deadly force.
Descriptive Statistics of the Survey Sample
|Years in LE||295||17.0||8.3||5017|
|Deadly Force Incidents|
|Did Not Fire||282||3.9||13.7||1102|
LE = Law Enforcement
n = Number of Participants
M = Mean
SD = Standard Deviation
Deadly force incidents indicate critical encounters where deadly force was a legal option.
“…a large number of officers have been in multiple situations in which they could have used deadly force, but resolved the incident without doing so and while avoiding serious injury.”
A state patrol officer in a marked cruiser patrolled an interstate highway and witnessed a vehicle changing lanes without caution. After a short pace, the officer determined that the vehicle was going faster than the posted speed limit, so he activated his emergency lights. The officer observed the driver, along with a passenger who appeared to be slouched in the right front seat. The vehicle did not stop immediately, but continued until it subsequently pulled to the side of the roadway and came to a halt. The officer noticed that this was an area of dim lighting.
The officer immediately called in the traffic stop by location and vehicle license plate number. He approached the vehicle from the rear of the driver’s side with his flashlight in his weak hand. Thinking that he had a drunk driver, the officer stopped at the center post and looked inside the car. The male passenger was slumped in the seat as if sleeping, and the driver’s window was down. The officer demanded the license, registration, and proof of insurance from the female driver. As she fumbled in her purse, the officer saw the man slide his hand under the driver’s leg and grab a gun. The officer immediately dropped to the ground and retreated to the rear of the car. He called for backup and reported the presence of the firearm.
The man with the gun turned from side to side, but could not locate the officer, who continued to command the subjects to remain in the car and drop the weapon. When backup arrived, officers removed the two subjects from the car without incident and retrieved the gun from the right floorboard of the vehicle. The male later stated that he “would have shot at the officer, but never had a clean shot.”
The officer may have acted with additional caution after the driver failed to immediately stop. He took control of the situation by the placement of his patrol vehicle and the heightened attention he gave when approaching the subjects’ vehicle. The message he transmitted by voice and behavior was clearly received by the pair in the car. They understood that he was ready and able to react to whatever they might attempt.
In this case, the officer would have had legal and ethical justification to use deadly force. The offender not only produced a weapon but later admitted in the interview that he would have shot the officer if he “could have gotten a clear shot.” However, the officer believed that he safely and successfully could control the occupants of the car without the use of deadly force.
TRAINING AND RESEARCH
In 2010, the U.S. Department of Justice, Bureau of Justice Assistance, awarded a grant to the authors and to the Fairfax County, Virginia, Police Department to educate the law enforcement community regarding the principles of the deadly mix.12 The training was designed and implemented as a 1-day session for state, municipal, and local law enforcement instructors and followed a train-the-trainers format. Ten sites from across the nation were selected, and the training was offered to approximately 50 students at each site. The participants were exposed to the principles of the deadly mix and their application to officer safety, supervision, and the investigation of the use of force. Students received hard copies of the trilogy on law enforcement safety, a CD with electronic copies of each study, and contact information for obtaining additional copies of each study for their own trainees. Each participant also received a CD that contained the computer-based presentations, video clips used in the course of victim officers and offenders, and lesson plans for each presentation.
During the training, participants completed a confidential survey questionnaire regarding their own use of force, as well as some related issues. The questions dealt with the 1) number of years in law enforcement, 2) average number of times the officers drew their firearms per year, 3) number of critical incidents in which they were involved, 4) number of critical incidents in which they fired their weapons, 5) number of times during their career in which they legally could have discharged their firearm in the performance of duty (shooting at someone) but chose not to fire, 6) number of times they had been assaulted during their careers, 7) number of times they were injured that required time off due to accidents, and 8) number of times they had been injured due to an assault that required them to take time off because of the injury. A total of 295 law enforcement officers participated in the survey questionnaire. These participants had an average of 17 years of law enforcement experience.
Table 1 contains general descriptive statistics for the survey sample’s questionnaire.13 These include the number of participants scored for each question, the mean for each question, the standard deviations of the means, and the total number of incidents for each question. What follows is a description of the results relevant to the discussion of the use of deadly force and restraint.
Two hundred sixty participants (96 percent) responded that they drew their firearms at least once each year. These officers believed they acted under threatening or critical circumstances.
One hundred ninety-seven participants (83 percent) responded that they had been involved in at least one critical incident during their careers. Fifty-nine participants (20 percent) indicated that they had been involved in at least one critical incident where they fired their weapon. Conversely, 197 participants (70 percent) responded that they had been involved in at least one situation where they legally could have discharged their firearm in the performance of their duties but chose not to fire. This corresponds with the information reported in Violent Encounters where 36 of the 50 officers stated that they legally could have discharged their firearm in the performance of duty.
Two hundred twenty-eight participants (80 percent) responded that they had been assaulted at least once during their career. Seventy-eight participants (27 percent) responded that they had received an injury due to an assault that required time off from duty.
The results of the study indicated that 80 percent of the officers had been assaulted during their career and that officers were assaulted an average of approximately seven times in the line of duty. Most assault data on law enforcement officers are highly conservative because most officers do not report being assaulted. Officers either believe that being assaulted “comes with the job,” or their idea of an assault is when they receive injuries requiring medical treatment.
The study found that approximately 70 percent of the sample of police officers had been in a situation where they legally could have fired their weapon during a critical incident but chose not to. Officers were involved in an average of four such incidents during the course of their career. Only 20 percent of the sample had been involved in critical incidents where they fired their weapon during the incident.
These results are pertinent in the discussion of restraint by law enforcement officers and their decision to use deadly force. Officers in the sample were involved in a total of 1,102 situations where they could have fired their weapon legally and ethically as defined by both law and by the organizational regulations of the respective police departments, but did not. The 87 total incidents in which officers legally fired their weapon during critical incidents pale in comparison with the number of situations where they chose not to fire. Officers in the sample were involved in 1,189 situations where deadly force was a legal course of action. Officers used deadly force in 7 percent of these situations. In other words, officers in the sample used restraint 93 percent of the time even when not legally mandated to do so. This percentage represents a significant amount of restraint by police officers. Further, in accepting the conservative nature of the data analysis, officers most likely used restraint in deadly force more often than what is accounted for in the data.
“If officers risk their personal safety by using restraint in deadly force, why has this phenomenon largely gone unnoticed in the media and research?”
If officers risk their personal safety by using restraint in deadly force, why has this phenomenon largely gone unnoticed in the media and research? An analysis of research on the topic of deadly force yields no studies directly related to the use of restraint in deadly force by agents of law enforcement. Instead, many studies have focused on environmental characteristics of situations where law enforcement officers used deadly force.14 Research efforts also have examined how organizational factors influence deadly force.15 Taken together, these studies found that organizational factors, such as departmental policy, can curtail and somewhat control the use of deadly force.16 However, these efforts did not assess the perceptions, beliefs, and thought processes of the individual officer in the situation. Studies that have taken this approach in research on deadly force focused on the perceptual distortions and psychological aftereffects of officers involved in deadly force situations.17 Thus, the body of research on deadly force has failed to examine the impact of the individual officer’s thought processes in the decision to use deadly force or restraint.
In regard to the media, cases involving deadly force overshadow the actuality that police officers overwhelmingly employ restraint in their use of deadly force. Perhaps, this media focus on the use of deadly force helps create the misconception that police officers use deadly force more often than they actually do. As the results of this preliminary study indicated, this is not the case.
Another important consideration in the discussion of deadly force is accuracy. A police officer’s decision to use deadly force in choosing to fire during a critical incident does not guarantee success. One researcher noted that police officers miss targets more often than they hit them when using deadly force.18 Further, hitting the target does not indicate whether a suspect was killed. Thus, the present study’s finding that there were 87 incidents where an officer used deadly force does not equate to 87 lethal shootings. Although somewhat simplistic, this reasoning is essential in conceptualizing the use of deadly force.
Limitations of the Study
The most noteworthy limitation of the present study is that it was a preliminary exploration into the use of restraint in deadly force. Although research on deadly force has been conducted since the 1970s, a study on restraint in deadly force is a relatively new concept.19 As such, the fact that this study was preliminary does not diminish its significance. Instead, it was meant to establish a basis for future research on the topic.
Another limitation is that the concept of restraint cannot be further defined based on the present results because the questionnaire did not delve into the inner psychology and perceptions of police officers in their decision to use restraint with deadly force. Once again, this is attributed to the preliminary nature of the data.
A final limitation of the study is the self-reported information from the sample of police officers. The possibility exists that the self-reported data from the questionnaires are not representative of the actual phenomenon of restraint. Further, the responses given by the police officers in the study cannot be validated by objective reports on the careers of each individual officer. Nevertheless, the questionnaire responses are assumed to be reliable and valid. Additionally, as open-ended, nonnumerical answers to the survey were excluded, 85 responses were not considered in the analysis of the data; this exclusion likely led to conservative results.
Future Directions in Research
The findings of this study as they relate to restraint in deadly force have significant implications for future research in the field. For example, what factors led to the officers using restraint? Does the use of deadly force reduce or increase the inclination of officers to use restraint in subsequent critical incidents? How do individual officers perceive restraint and deadly force? What characteristics of a critical incident lead to deadly force? These questions highlight the importance of the deadly mix in systematically studying and understanding restraint in deadly force. The core components of the deadly mix represent the dynamic nature of any law enforcement situation where the officer, offender, and circumstances come together. The decision to use deadly force is made in an instant. The factors that come together in the mind of the officer to use or not use deadly force can change dramatically within an individual encounter. The fluid nature of this deadly mix can help examine the officer’s decision to shoot or not shoot within that given set of rapidly changing circumstances. Further research on restraint can elucidate how these three factors influence an officer’s decision to use deadly force in the line of duty. The results of these studies can assist administrators, supervisors, investigators, officers involved in deadly force encounters, other officers from the department, prosecutors, citizens, and the media to better understand and evaluate the use of force in law enforcement.
“The study found that approximately 70 percent of the sample of police officers had been in a situation where they legally could have fired their weapons during a critical incident but chose not to.”
From a training standpoint, an additional avenue of future research is the applicability of restraint in situations of excessive force. As stated earlier, excessive force—specifically, force that is unnecessary, unwarranted, and disproportionate—is both unlawful and unethical. Therefore, it is essential that research analyzes how restraint can safeguard against the excessive use of force. These principles then can be applied to officer training in safety and tactics.
This preliminary examination of restraint in the use of deadly force established the extent to which a sample number of police officers used restraint throughout their careers. A survey on the use of force found that police officers exercised restraint in deadly force in 93 percent of the situations where they legally could have fired their weapons. This finding sharply contrasts with the public perception of police officers and the use of deadly force.
Documented research on restraint currently is lacking. There were two related issues under which the data found in this article were collected. First, the authors recognized that there exists an idea, created in part by the media, within society that there is excessive and widespread use of deadly force within the law enforcement community. Second, against this social perception, the authors wished to assess the view within a portion of the law enforcement community regarding how they see law enforcement’s use of deadly force. The results of this preliminary review show dramatic differences between the two groups.
Future research is needed that reveals confirmed and validated numbers where law enforcement officers could have used deadly force, but refrained from doing so. Agencies that currently record instances regarding the circumstances where officers have drawn their firearms without firing them can assist in this important research question.
Conceptualizing restraint in terms of the theory of the deadly mix reveals the dynamic nature of restraint in deadly force. In doing so, law enforcement entities can ensure the safety of the officer, the public, and the offender while maintaining order and justice.
“The findings of this study as they relate to restraint in deadly force have significant implications for future research in the field.”
Dr. Pinizzotto welcomes questions and comments concerning this article. He can be reached by mail at 13807 Poplar Tree Road, Chantilly, VA 20151; by e-mail at email@example.com; and by phone at 703-814-7989.