(c) A peace officer is justified in using deadly force against another when and to the degree the peace officer reasonably believes the deadly force is immediately necessary to make an arrest, or to prevent escape after arrest, if the use of force would have been justified under Subsection (a) and:

(d) A person other than a peace officer acting in a peace officer’s presence and at his direction is justified in using deadly force against another when and to the degree the person reasonably believes the deadly force is immediately necessary to make a lawful arrest, or to prevent escape after a lawful arrest, if the use of force would have been justified under Subsection (b) and:

(e) There is no duty to retreat before using deadly force justified by Subsection (c) or (d).

(f) Nothing in this section relating to the actor’s manifestation of purpose or identity shall be construed as conflicting with any other law relating to the issuance, service, and execution of an arrest or search warrant either under the laws of this state or the United States.

(g) Deadly force may only be used under the circumstances enumerated in Subsections (c) and (d).

The penal code section above sets out the bottom line requirements for the justified use of force. Think of it as setting a continuum for action from 1 to 10. With one being the lowest level and 10 being the highest level of force. Below is the San Antonio Police Department’s interpretation of the Texas Penal Code, Use of Deadly Force. (The link shows the complete Use of Force Policy.) This section does not tell one all they need to know. Policy sections dealing with Firearms, equipment, tasers, chemical weapons, nightsticks, Firearms qualification, driving, training also impact the use of force to one degree or another. I would also note that many departments do not publish their use of force guidelines.

SAPD/501-UseOfForce-11-10-15.pdf

07 USE OF DEADLY FORCE
A. This section applies to all forms of deadly force, regardless of the type of instrument or weapon used.
B. The use of deadly force is authorized only to protect an officer or another person from what is reasonably believed
to be an immediate threat of death or serious bodily injury.
1. An officer with an honest and sincere personal belief his life or the life of another person is in imminent danger
is justified in using deadly force to preserve that life.
2. Justification for the use of deadly force is determined by the facts known or perceived by the officer at the time
the deadly force is employed.
C. The use of deadly force against one who is fleeing from custody, or who is fleeing immediately after committing an
offense, is prohibited unless the officer has probable cause to believe the suspect poses an imminent threat of death
or serious bodily injury to the officer or a third party.
D. A lateral vascular neck restraint (LVNR) shall not be used unless deadly force is authorized.
San Antonio Police Department
GENERAL MANUAL
Procedure 501 – Use of Force
General Manual Procedures – Section 500 Arrest Procedures Page 5 of 9 Effective Date: November 10, 2015
E. Approved firearms are intended to be used as defensive instruments to prevent an assailant from completing a
potentially deadly act. A firearm is discharged with the intent to stop or incapacitate.
F. Firearms are not discharged under the following circumstances:
1. As a warning shot;
2. When it appears likely a non-participant may be injured; or
3. At or from a moving vehicle, except as the ultimate measure of self-defense or defense of another. Officers
should employ all reasonable means available to move to an area of safety if the vehicle becomes a threat,
including retreating from the threat, if practical.
.08 SHOULDER WEAPON DEPLOYMENT
A. If physical force and the use of intermediate weapons have proven ineffective or are not reasonable options based
upon the circumstances, officers authorized to deploy and use a department-approved shoulder weapon may do so
to neutralize a threat that poses an imminent danger of serious bodily injury or death to any person.
B. Officers shall only utilize a shoulder weapon consistent with the training received and in accordance with all GM
Procedures and Standard Operating Procedures (SOPs).
C. A shoulder weapon is intended to augment primary and approved handguns under circumstances where a hand
held weapon is not sufficient to neutralize a perceived threat that may result in serious bodily injury or death.
1. A shoulder weapon may be used or deployed at a scene where it is requested by an officer or supervisor who is
in a position to articulate the need for such support; and
2. Supervisors will ensure compliance with section .12 of this procedure.
D. The decision to deploy or use a shoulder weapon will be dependent upon the actions of the subject, the threat
facing the officer, and the totality of circumstances surrounding an incident.
E. As with any other type of force, officers will end the use of a shoulder weapon when the subject discontinues
resistance, aggression, or when the threat has been sufficiently neutralized and a shoulder weapon is no longer
necessary to affect a police response.
F. Shoulder weapons should not be brandished, displayed, or pointed at a subject in an intimidating manner unless an
officer is attempting to prevent further escalation of force or finds it necessary to discharge the weapon to
neutralize a that of serious bodily injury or death to any person.

G. More than one officer may deploy a shoulder weapon at a scene as dictated by the circumstances, keeping in mind
the location of other officers, other persons, and other variables involved in the situation.
H. As soon as practical, an officer will immediately notify the Communications Unit of a shoulder weapon discharge
and advise on whether there are any hits or injuries.
I. Improper handling or inappropriate uses of a shoulder weapon may result in disciplinary action.
.09 MEDICAL TREATMENT
A. Prisoners, who are injured as a result of an officer’s use of force, either physical, non-deadly, or deadly force, are
provided immediate medical treatment in accordance with GM Procedure 601, Prisoners.

I am not picking on SAPD, by posting their policy online they are ahead of many agencies in being open and above board in their processes. The PD has fallen in line with the “higher standard” myth that began in the seventies. 

I don’t have a problem with a department specifying a higher level of training, the type of equipment available to the officer, tactical considerations consistent with the agencies view of the mission. However, when these add ons detract from, confuse or undermine the ultimate issue, the justified use of deadly force in a particular instance? It requires a yes or no answer. There may be other issues that come into play but if these issues leave the lawful use of deadly force unchanged, then they are not relevant here.

Earlier I described the penal code approach to the use of deadly force as establishing a continuum in its application from 1 to 10. SAPD and just about every law enforcement agency that has an established use of force policy comes along and substitutes their continuum. But they are not the same, the SAPD continuum begins at 4 and extends to 10. Agencies can be more conservative than state and federal law, but not more liberal.

Look at the law. The law doesn’t specify how one goes about the killing. Now look at the policy: A lateral vascular neck restraint (LVNR) shall not be used unless deadly force is authorized, approved firearms, At or from a moving vehicle, except as the ultimate measure of self-defense or defense of another, officers authorized to deploy and use a department-approved shoulder weapon may do so. 

The Lateral vascular neck restraint (LVNR) also called the LAPD Sleeper hold or “Doing the Chicken” by Roscoe Rules The Choirboys by Joseph Wambaugh is a non-lethal control technique, when applied correctly. Anecdotal evidence indicated that the Los Angeles Police Department (LAPD) experienced a high degree of fatalities using the hold. It has been banned, or in this case highly restricted in its use. Applied correctly, the suspect passes out when the blood flow to his brain is interrupted giving officers time to handcuff the suspect.  Side effects include convulsions (doing the chicken) and the suspect defecating in his pants. It is hard being a tough guy as one walks into the jail shaking shit down a pant leg. I don’t have a problem with the policy as written. I don’t believe that the LVNR is as dangerous as it is made out to be. But using it only in the gravest extremes will protect the officer, should something go wrong.

Approved firearms, what does that mean? Is that restricted to the gun the officer fired at qualification, identified by serial number? Is it all guns of the class, semi automatics, revolvers, single action, double action, striker fired, major manufacturer? Many police officers like guns, some have more guns than fingers and toes. Are officers to qualify with all guns? Who determines proficiency? There are gun clubs and sports shooting groups to fit a wide variety of interests. Consider these possibilities:

1. An off duty officer is competing in a “cowboy three gun competition.” An active shooter incident occurs and the officer intervenes and kills the shooter. The officer is armed with a Colt SAA in 45 caliber, a ten gauge coach gun (shotgun) and a 1859 Sharps Carbine in 54 caliber, none of the weapons are approved for use in his law enforcement role.
2. An officer is investigating a suspicious person complaint. As he moves to frisk a seeming compliant suspect, the suspect wheels and stabs the officer. Unable to break contact the officer struggled over the knife. They fall, and the officer is laying on his weapon. Fearing that if he passes out the suspect will kill him, the officer wrests control of the knife and slits the suspect’s throat from ear to ear. The suspect bleeds out in less than a minute and dies.
3. Officers are in a running gun battle with a suspect. As he crosses a six lane street, on foot, a responding officer aims his patrol car at the suspect and makes him a hood ornament while traveling sixty miles an hour.  The suspect is dead right there (DRT)
4. Two bank robbers spent the best part of forty minutes shooting at everything that moves. Equipped with body armor, head to foot, police weapons are ineffective. Some patrol officers take it upon themselves to commandeer rifles from a local gun store. Since the department does not issue rifles, there is no authorized training program or weapons approved for use in such a situation. Both suspects are subsequently killed.

State law is concerned with describing proscribed conduct and setting a guide for acceptable action. Simply put it says if an offender uses deadly force then he should expect the same to be directed back at him. Policy, on the other hand, is more concerned with the activities of the officers and that they approach matters in an even handed methodical manner. The problem being they are often going into chaotic situations and can only control the actions of half the participants.

The use of deadly force is justified in the scenarios I laid out above, under state law. As a matter of policy, it isn’t as clear cut. I think that an argument can be made that there are policy violations in each situation. However, I would take the stand that the violations are present because of poorly written policy.

But we are not done yet. With policy comes training to educate officers as to what the policy is on any particular matter. Training also needs to reflect policy in the application of tactics, techniques, and equipment. The final area is supervision. First line supervisors need to ensure those leadership decisions that reflect that policy as is, rather than the way things have been done.

In the 1970’s the International Association of Chiefs of Police (IACP) in a study of police use of force, policy concluded that, as a rule, all fifty-four agencies studied had three levels of policy, one that the Chief intended, one as taught by training and the third as practiced.

In the DC Metro shooting, according to the police and U.S.Attorney’s Office, the passenger officer was in the process of exiting the patrol car when Sterling rammed his side of the patrol car. Sorry gang, a motorcycle ramming a vehicle constitutes deadly force. This seems to be the specific grievance.  The officer fired from a moving patrol car at a moving motorcycle.

The accused officer was in the passenger seat. Next time you walk by a parked patrol car look inside. If the patrol car is occupied, ask the officer for a guided tour.  The driver’s side isn’t bad, he has to drive. That means all the radios, emergency controls, MDT, flashlight chargers and anything else somebody decided would be neat to have got shoved to the right into the passenger officer’s space. Immediately behind the front seats is a roll bar equipped with a cage. Sit down in the passenger seat, imagine a motorcycle heading for your door. Now, where are you gonna go?

There is plenty of finger pointing and grandstanding going on, D.C. Councilmember David Grosso, who has been critical of the police department in the past, says Officer Trainer’s actions the night he shot Sterling are cause for a bigger concern.”I think they also need to dig a little deeper and see where the systemic problems are. These guys were trained MPD officers and chose to completely ignore the rules of MPD. So, how can that happen? Why does it happen? And a further investigation into the full system needs to be done as well, not just the actions of these two guys, which was very inappropriate,” Grosso said. What can I say, there are whores in every profession.

However, Councilperson Grosso does make one point. No, I do not agree with him, because the “systemic problems” that he is talking about and the ones I am talking about bear no resemblance to one another.

I have already made a start. We want police officers to follow the law. We would like them to perform at a higher level than the guys from the next town over. Afterall our cops are the best. The cheap fix is policy. All you need is a cop too afraid to go out on the street, a computer, a ream of paper and a rubber stamp and soon the department will have more policy than Carter has pills. Will it be good policy, probably not?

I am not suggesting that police departments abandon policy and policy manuals. But there are two things that they need to in the meantime.

First, they need to clean up their use of force policy. The Texas Penal devotes eight paragraphs to the duties and responsibilities of peace officers, in using deadly force. The San Antonio Police Department devotes nine pages and includes reporting responsibilities, supervisory responsibilities and follow up. Those areas need to be addressed, just not here. This section is reserved for the lone officer, or partners that are confronted with a most important decision, one of life and death. They deserve the department’s undivided attention and guidance without a lot of bureaucratic drivel. If it doesn’t deal with the circumstances surrounding the justified killing of a suspect, then it doesn’t need to be the Use of Force Policy.

Second, deals with training. For a long time, police training outcomes were measured by how many hours one’s butt was in a seat in a classroom. Large departments oftentimes didn’t recognize any but their own training. There are a variety of training opportunities in the marketplace, some good some not so good. Officers bring life experience with them. Does a combat veteran with multiple tours need a “certification course” on the care and feeding of an M-4, from a range officer who has never fired it in anger or cared for the weapon in field conditions? A simple proficiency/qualification course of fire would free up training time and put the right people with the right equipment out in the field. There are a variety of skills that may lend themselves to a proficiency/qualification test that would allow officers to perform at a higher level.

Realistic training based on the policy will demonstrate two things. One it will identify bad policy. If the training staff and the officers expected to follow the policy can’t make it work at half speed in a controlled environment, it will never work in the field.  Such policy, once identified can be reworked or eliminated. If the officers are trained to work within the bounds of policy, then the field application will be dictated by training with the added bonus that policy is followed.

When I started as a cop, in the previous century, those departments that had a policy called it a “guide to decision making.” It pointed the officer in the right direction, towards making a good decision, but at the same time admitted there were limitations. As time went by policy became more rigid and more oppressive. Chiefs and Sheriffs discovered not only could it guide decision making but skillfully written and applied was a great cover your ass tool.

Plaintiff’s attorneys took to Police Policy Manuals like they had been carved from the same stone as the Ten Commandments and like the Ten Commandments were inviolate.

It won’t be enough for the police to address any inadequacies that they identify as long as Black Lives Matter (BLM) and their ilk give black males a free hand to commit felonies at will and without apology. Terrence Sterling is not a hero. He was a drunk riding a motorcycle under the influence of alcohol and marijuana who at most tried to kill a Metro police officer or at least was utterly indifferent as to whether or not the officer lived.

I am beginning to wonder if Sterling doesn’t represent a subset of the “Suicide by Cop Fraternity.” Police departments across the nation are confronted by individuals who decide they want to end things, but either can’t do it themselves or nominate the police to do it for them. Often times there is a history of attention seeking behavior leading up to the final confrontation. There already is a subset in that fraternity that I call, “Blaze of Glory.” These are criminals who are caught during a criminal episode and rather than surrender decide to shoot it out; examples abound, the North Hollywood shootout 1997, the Miami FBI shootout 1986, and the SLA shootout 1974.

There is a subset in that fraternity that I call, “Blaze of Glory.” These are criminals who are caught during a criminal episode and rather than surrender decide to shoot it out; examples abound, the North Hollywood shootout 1997, the Miami FBI shootout 1986, and the SLA shootout 1974. Shooters in this category are not willing to leave their fate to the system. So they enter into a pact to “go down fighting.”

For lack of a better term, it is Economy Class Blaze of Glory. It involves a male engaged in criminal activity as an attention getting act. The suspect may be armed or use an improvised weapon. The whole episode has a spur of the moment feel to it, The suspect either fails to follow instructions or commits an act perceived as being dangerous to law enforcement. It’s almost as if the suspect is stage managing his own demise for later comparison to “ScarFace,” but he won’t be there for the reviews.

Paul Battaglia began his police career in the past century and retired after thirty years, fifteen assigned to a narcotics task force. He has just recently published his first novel The Unit available as an ebook on Kindle and Nook. He lives in the San Antonio, Texas area.