Police and Deadly Force: Looking For Middle Ground

From The Oregonian, August 26, 1994

When Portland-area police fatally fired on Gale E. Moody and Janet Marilyn Smith in separate incidents this week, they were doing exactly what they’ve been taught to do.

Police training and tactical weaponry now offer little middle ground between negotiating with someone threatening harm and using deadly force.

Once an officer makes the call to use deadly force — judgments based on a continuum-of-control model — his or her job is to eliminate the threat.

That doesn’t mean disable the threat.

That doesn’t mean disarm the threat.

It means do whatever it takes to stop the suspect.

But law enforcement nationally and in Portland is beginning to take a hard look at nonlethal weapons as an alternative in some deadly force situations.

Following the 1992 police shooting of Brian French in which his hostage, 12-year-old Nathan Thomas, was accidentally shot and killed by police, the Portland bureau conducted an internal study that was completed last month.

The use of less-than-lethal weapons by all operations officers is a key recommendation.

The report identified training gaps “that need to be closed to better prepare the organization to deal with changing situations.”

Less-than-lethal weapons, the report stated, can be fired at subjects in situations — for crowd control, riots, and confrontations with suicidal subjects — before they become deadly force scenarios.

Such weapons systems include bean-bag rounds, rubber bullets and sting-ball rounds. All can be fired from 12-gauge shotguns or .37-caliber gas guns.

Capt. Roy Kindrick, training commander for the bureau, and Portland Mayor Vera Katz, who serves as police commissioner, agree that police interaction with the mentally ill is increasing. Because more people are being de-institutionalized, less-than-lethal weapons systems are being pushed to the forefront.

This past week offers two poignant examples.

On Sunday, Gresham Police Officer Ron Willis shot and killed Janet Smith, 28, after she lunged at him with a knife in an aisle at a Gresham Fred Meyer store. Smith had a documented history of mental illness.

Then on Wednesday, Portland Police Bureau officers Audra L. Espinosa and Kenneth L. Jones fatally shot Gale Moody, 52, after she pointed what turned out to be a fake handgun at them in Southeast Portland. Moody behaved in ways that made police and neighbors question her mental stability.

Since the shootings, questions have swirled throughout the community.

Why did police have to shoot these women?

Wasn’t there another option?

Given what’s available to them today, police say the answer is no.

But in Portland, the idea of finding a middle ground when it comes to defusing threatening situations is bringing together camps that often disagree.

From defense attorneys to the Multnomah County district attorney, everyone is interested in avoiding police shootings — especially in the cases of mentally ill individuals.

There are many kinks to work out, however, before Portland police strap nonlethal weapons into their gun belts.

For starters, the systems are just beginning to be commercially available. And Kindrick said that recent testing of the weaponry reveals a number of flaws.

At close range, the nonlethal rounds travel fast enough to pose a risk of serious injury or death. At longer distances, the rounds displayed unacceptable inaccuracy.

Even more disturbing, said Kindrick, is that some of the rounds can be fired from standard 12-gauge shotguns carried in patrol cars.

This would make it possible for officers, under conditions of extreme stress, to load a 12-gauge buckshot round when they intended to load a less-than-lethal round — with obviously dire results.

And what if the nonlethal weapon doesn’t work?

Lt. C.W. Jensen, spokesman for the Portland Police Bureau, doesn’t want to even think about the answer to that one.

“Unless you have a Star Trek phaser and you can freeze them, if you use less-than-lethal force and it fails to incapacitate the person, that means dead police officers, and that means dead citizens, and then how do you explain that to the community?”

This year in San Diego there have been 14 police shootings, seven of them resulting in deaths. All of the shootings were cleared by a grand jury and a separate citizens review board.

Nature of confrontations

Still, Sgt. Reggie Frank, police bureau firearms trainer, says some members of the public don’t understand the nature of deadly force confrontations.

“I get calls from people who want to know why we didn’t kick the knife out of a guy’s hands because that’s how Chuck Norris did it on TV,” Frank says. “I don’t know any police officer who can kick a knife out of someone’s hands with any certainty of success. And if you aren’t successful, you pay a dear price.”

If less than lethal force isn’t possible, some wonder why officers don’t bring a mental health professional along when dealing with mentally ill suspects.

“If the police department’s response in dealing with the mentally ill is only to bring police officers who are prepared to shoot to kill, there’s something wrong,” said Spencer M. Neal, a Portland defense attorney who has brought several suits against the police.

Portland police do work with the Metro Crisis Intervention Service, an agency that responds to mental health emergencies 24 hours a day.

Police can call in a mental-health practitioner to help in a hostage or other threatening situation. But that professional is not called until officers get to the scene and size up the situation.

In both shootings this week, police say there was not time to call a professional to the scene.

Portland’s Jensen says police need to stabilize the situation before a mental health professional is brought in to avoid jeopardizing that person’s safety.

Laura Jeibmann, executive director of Metro Crisis, agrees.

“I can certainly assist officers in de-escalating a situation,” she said. “But I don’t have the training nor the expertise — nor the desire — to go into a situation that may be lethal.”

Record of successes

Jensen says discussions about alternatives to the way police handle threatening situations with the mentally ill ignore the many times that current police tactics are successful.

Sadly, in many situations, police wind up shooting people who have decided they want to be killed.

“State-assisted suicide is what we’ve got here in many cases,” said Edward J. Jones, director of the Multnomah Defenders Inc. “There’s no place for them in institutions anymore. They get out, get off their medicine and the police have to shoot them.”

Multnomah, Washington and Clackamas counties contract with four Portland-area hospitals for emergency, acute-care psychiatric treatment.

The contract provides for a total of 44 beds for police holds and court commitments. But the system, says Bill Toomey, supervisor of involuntary commitment services for Multnomah County, often frustrates police because it is continuously filled to overflow.

With respect to the use of deadly force, Multnomah County District Attorney Michael D. Schrunk says Oregon law is very specific. In addition, grand jury reviews allow for independent inquiries into whether a shooting was justified under the law.

Yet, Schrunk acknowledges that police shootings — even when justified — raise troubling questions.

“Even if a grand jury clears a shooting, it doesn’t mean that they embrace what happened, it doesn’t mean that what happened is right.”

Schrunk believes the answers come back around to appropriate training.

“That’s where the system changes have got to be made.”