Run and get shot in the back in Chicago....

Chee-to · Jul 29, 2009

Chicago police will be able to shoot "suspected" bad guys in the back, even though they haven't been threatened (The old policy allowed officers only to shoot at vehicles that pose a threat to them or others, such as if the driver were trying to run down the officer.) Hmmmm, what would happen if you or I shot an unarmed "suspected" crook, who has "verbally threatened" you, in the back while they were trying to flee ??

<broken link removed>

The Chicago Police Department is considering a major change in policy regarding the use of deadly force. The department is looking at allowing police officers to fire their guns under circumstances where they previously could not.

The new policy, from police Supt. Jody Weis and confirmed by WBBM Newsradio 780 Wednesday morning, would allow police officers to shoot at fleeing vehicles if the driver or passengers are suspected of committing a felony.

Earlier today, a police spokesman told Newsradio 780 that the policy would take effect on Monday.

"Now officers will be able to fire upon the driver or passenger in a vehicle if that person is a forcible fleeing felon, someone who has committed a very serious offense resulting in bodily harm or has threatened to commit great bodily harm," Drew told Newsradio 780.

The old policy allowed officers only to shoot at vehicles that pose a threat to them or others, such as if the driver were trying to run down the officer.

Later Wednesday, the department issued a statement saying the plan was under review.

The department is "currently reviewing the existing order [to] provide officers with more clear direction. The review process is ongoing and will not be rushed."

el gringo loco · Jul 29, 2009

All this would do is change the department's policy with regard to suspects that are fleeing in a vehicle. While I am not familiar with Chicago's specific policy, the article seems to indicate that the proposed policy change would place violent felons that flee in a car on the same footing as violent felons that flee on foot.

For the past few years, police departments (as a result of costly litigation) have adopted policies and training that severely limit shooting at a moving vehicle. There were many cases where officers fired at suspects who were trying to "run them over"-use deadly force on the officer. The plaintiff's attorneys argued (successfully) that the suspects had been trying to get away or that the officer should have simply stepped aside or that the officer placed themselves in the path of the vehicle. Additionally, the argument was that a dead driver was no more likely to stop a moving vehicle than a live fleeing one was made. The new policies (adopted by most major police departments across the country) fairly broadly prohibited shooting at moving vehicles. Then came the exceptions.....

Many of these policies did not address what to do if the deadly force threatening the officer was not the car, but a person in the car shooting at them. Policies were modified. This policy change seems to address another problem. Since Tennessee vs. Garner, the standard to use deadly force on a fleeing suspect has been: "[deadly] force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others"

In other words, if a police officer has probable cause to believe that a person has committed a felony and that the suspect poses a continuing serious risk to the officer or the public if allowed to escape, the officer may "seize" the suspect by using deadly force. The Chicago policy change seems to acknowledge that, despite the prohibitions against firing at a moving vehicle, there are times when a suspect, who needs to be shot, is fleeing in a vehicle.

For example, a suspect shoots at the police, holsters his gun and turns to run away into a mall. The suspect (still armed), with his back turned, is no longer an immediate threat to the cop, but the requirements of Garner are satisfied and the suspect can be legally shot in the back. The previous policy would have prevented shooting at the same suspect if he had hopped into a moving vehicle.

This article is likely about closing a loophole, not really changing the standard Chicago PD must meet to shoot someone in the back---because they already can.

Chee-to · Jul 29, 2009

For example, a suspect shoots at the police, holsters his gun and turns to run away into a mall. The suspect (still armed), with his back turned, is no longer an immediate threat to the cop, but the requirements of Garner are satisfied and the suspect can be legally shot in the back. The previous policy would have prevented shooting at the same suspect if he had hopped into a moving vehicle.

Doesn't say the "suspect" has to be armed or even threaten the officers, "The old policy allowed officers only to shoot at vehicles that pose a threat to them or others, such as if the driver were trying to run down the officer." now they will be able shoot the driver or passenger whether threaten or not.....

el gringo loco · Jul 29, 2009

I know what the article says....But, I think this is a case of (a) shoddy reporting (b) a reporter that really doesn't know what he/she is talking about or (c) a reporter trying to make hay to sensationalize an otherwise non-story into something that people will get all worked up about.

The fact is that Tennessee vs. Garner is the law of the land. The standard set out in that decision (and other decisions that restricted use of deadly force even further in specific cases) sets the MINIMUM standard for an officer to shoot someone who is fleeing. A department cannot create a more lax policy without violating federal law and inviting lawsuits galore.

Chee-to · Jul 30, 2009

Well, as contentious as this seems (and will be in Chicago), it's Illinois state law

ARTICLE 7. JUSTIFIABLE USE OF FORCE; EXONERATION

(720 ILCS 5/7‑5) (from Ch. 38, par. 7‑5)
Sec. 7‑5. Peace officer's use of force in making arrest. (a) A peace officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to effect the arrest and of any force which he reasonably believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself or such other person, or when he reasonably believes both that:
(1.) Such force is necessary to prevent the arrest from being defeated by resistance or escape; and
(2.) The person to be arrested has committed or attempted a forcible felony which involves the infliction or threatened infliction of great bodily harm or is attempting to escape by use of a deadly weapon, or otherwise indicates that he will endanger human life or inflict great bodily harm unless arrested without delay.
(b.) A peace officer making an arrest pursuant to an invalid warrant is justified in the use of any force which he would be justified in using if the warrant were valid, unless he knows that the warrant is invalid.
(Source: P.A. 84‑1426.)

(720 ILCS 5/7‑8) (from Ch. 38, par. 7‑8)
Sec. 7‑8. Force likely to cause death or great bodily harm.
(a.) Force which is likely to cause death or great bodily harm, within the meaning of Sections 7‑5 and 7‑6 includes:
(1.) The firing of a firearm in the direction of the person to be arrested, even though no intent exists to kill or inflict great bodily harm; and
(2.) The firing of a firearm at a vehicle in which the person to be arrested is riding.
(b.) A peace officer's discharge of a firearm using ammunition designed to disable or control an individual without creating the likelihood of death or great bodily harm shall not be considered force likely to cause death or great bodily harm within the meaning of Sections 7‑5 and 7‑6.
(Source: P.A. 90‑138, eff. 1‑1‑98.)

(720 ILCS 5/7‑9) (from Ch. 38, par. 7‑9)
Sec. 7‑9. Use of force to prevent escape.
(a.) A peace officer or other person who has an arrested person in his custody is justified in the use of such force to prevent the escape of the arrested person from custody as he would be justified in using if he were arresting such person.
(b.) A guard or other peace officer is justified in the use of force, including force likely to cause death or great bodily harm, which he reasonably believes to be necessary to prevent the escape from a penal institution of a person whom the officer reasonably believes to be lawfully detained in such institution under sentence for an offense or awaiting trial or commitment for an offense.
(Source: Laws 1961, p. 1983.)

el gringo loco · Jul 30, 2009

I understand what Illinois state law says and our own ORS says:

161.239 Use of deadly physical force in making an arrest or in preventing an escape. (1) Notwithstanding the provisions of ORS 161.235, a peace officer may use deadly physical force only when the peace officer reasonably believes that:
(a) The crime committed by the person was a felony or an attempt to commit a felony involving the use or threatened imminent use of physical force against a person; or
(b) The crime committed by the person was kidnapping, arson, escape in the first degree, burglary in the first degree or any attempt to commit such a crime; or
(c) Regardless of the particular offense which is the subject of the arrest or attempted escape, the use of deadly physical force is necessary to defend the peace officer or another person from the use or threatened imminent use of deadly physical force; or
(d) The crime committed by the person was a felony or an attempt to commit a felony and under the totality of the circumstances existing at the time and place, the use of such force is necessary; or
(e) The officers life or personal safety is endangered in the particular circumstances involved.
(2) Nothing in subsection (1) of this section constitutes justification for reckless or criminally negligent conduct by a peace officer amounting to an offense against or with respect to innocent persons whom the peace officer is not seeking to arrest or retain in custody. [1971 c.743 §28]

Many states still have a "fleeing felon" statute on the books. However, Illinois law and Oregon law are both still preempted by federal law--In this case, that law is Tennessee vs. Garner. They can make it more restrictive for a cop to shoot someone, not easier. If Tennessee vs. Garner ever got overturned, then the lower state standard would take effect. In Oregon, that standard would be that the officer had probable cause to believe you committed a felony, any felony, or attempted a violent felony. In Illinois, that standard seems to just include violent felonies (much closer to the standard set in Garner). It also looks like the Chicago PD policy would simply be adopting the standard set out in the second paragraph that you quoted--loosening the policy to make it the same as the statutory requirement.

torpedoman · Jul 30, 2009

A spokane cop shot a guy who slapped him and was running away made to news on one report only.

Chee-to · Jul 30, 2009

Many states still have a "fleeing felon" statute on the books. However, Illinois law and Oregon law are both still preempted by federal law

How often does the federal government intervene with local shootings ? Medical marijuana is also against federal law, but many states including Oregon and California have compassionate use laws, and you sure don't see the feds doing much about it.........

el gringo loco · Jul 30, 2009

I see your point except.....

Your example points out violations of federal drug law by individuals. A police policy that violates the constitution and federal civil rights law is another story. If a police officer was to operate under the color of law as an agent of the government while violating someone's civil rights (and someone died)... The Feds would take notice.

wichaka · Jul 30, 2009

Federal case; 471 US 1

Chee-to · Jul 30, 2009

Was Edward Garner's father awarded any damages, and was Elton Hymon found guilty of any wrong doing ?? Just wondering...........

wichaka · Jul 30, 2009

I don't know, someone here may come up with that answer.

From that landmark ruling, many thought LE could no longer shoot fleeing felons...not so. It just installed some factors that have to be met before doing so.

Every state is a bit different. Which comes down to a good question...are we the United States, or the Separate States of America?

Chee-to · Jul 30, 2009

I see your point except.....

Your example points out violations of federal drug law by individuals.

You do have to be licensed by the state to "legally grow, distribute/sell" MM to "qualified users," so it seems that it's not just a "individual" violation.....

el gringo loco · Jul 30, 2009

From that landmark ruling, many thought LE could no longer shoot fleeing felons...not so. It just installed some factors that have to be met before doing so.

This is basically what I was trying to say....just a heck of a lot less wordy.

You do have to be licensed by the state to "legally grow, distribute/sell" MM to "qualified users," so it seems that it's not just a "individual" violation.....

My point was that, with regard to medical marijuana, the state is simply saying: "if you go through these steps, we are not going to arrest you." The state is not growing the marijuana or in any way supporting the violation of federal law. At worst, the state is not cooperating with federal law enforcement. Marijuana laws vary throughout the country. Some are much looser than federal law, some are probably more strict. But, the feds have made it standard practice to defer a large part of this enforcement and prosecution to the local governments. Those prosecutions are of individuals and would represent a huge cost for the federal government.

On the other hand, the federal government--and federal law enforcement--is the primary entity responsible for investigating color of law violations. If a local government, through policy or practice, were to use its employees and agents to violate the constitution, it would be rained down upon with the full fury and hellfire of the federal court system. NOTE: This is different than if a single cop violates department policy AND violates someone's constitutional rights. That type of incident has the potential to be handled locally.

The FBI explains why they investigate these crimes here: <broken link removed>

These are just some of the laws that cover this kind of case:

Title 18, U.S.C., Section 241
Conspiracy Against Rights

This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same).

It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises of another with the intent to prevent or hinder his/her free exercise or enjoyment of any rights so secured.

Punishment varies from a fine or imprisonment of up to ten years, or both; and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years, or for life, or may be sentenced to death.

Title 18, U.S.C., Section 242
Deprivation of Rights Under Color of Law
This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.

Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.

Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Not a set of laws to be trifled with. And, in practice, the feds almost always prosecute those types of crimes.

Chee-to · Jul 30, 2009

Good and interesting info. Thanks :s0155:

el gringo loco · Jul 30, 2009

I wasn't trying to be a know-it-all snot about any of this. It's just that members of the media tend to try to sensationalize things that are not that sensational. That irresponsible reporting then gets people all fired up on forums like this (and, rightfully so).

I like that people are paying attention, you just have to consider the source. Local TV news is notoriously inaccurate and sensationalized....FOX12 anyone?

JasonFightsCrime · Sep 24, 2010

Chee-to said:
Was Edward Garner's father awarded any damages, and was Elton Hymon found guilty of any wrong doing ?? Just wondering...........

Hymon followed the law as it was written at the time, so he couldn't be held liable.

When an officer is sued, the first thing they're going to ask for is summary judgement. That means that even if the facts as alleged by the plantiff were true, the officer didn't violate the rights of the plantiff.

As I recall, Hymon recieved summary judgement at both the district level and the circuit court of appeals.

The other thing an officer will ask for is qualifed immunity. That basically means that even if the officer did violate a person's rights, those rights weren't settled law. Therefore, the officer can't be held to that standard. So Hymon wasn't held liable for this.

Qualified immunity can't protect governments, and as I understand it, Memphis had to pay out some money over this.