Bar News - July 19, 2017
Opinion: Police Officers Should Not Be Permitted to Shoot at Moving Cars
By: Chuck Douglas
For government employers concerned about liability, this article discusses three recent cases with three different results for New Hampshire law enforcement officers who have fired their service weapons at moving vehicles.
In the first case, police officer Patrick Riley of the Belmont Police Department was on patrol in Belmont, New Hampshire, on Oct. 28, 2016. At about 1:30 a.m., he was patrolling on South Road in a fully marked cruiser and was wearing a standard issue uniform, with a trench coat and hat, both of which were clearly marked as POLICE garments. He observed a vehicle pulled over on the side of the road with its engine and lights on. As he approached the vehicle, he illuminated his spotlight. Riley, through dispatch, learned that the driver, Hayden Moon, had an outstanding electronic bench warrant with $1,000 cash bail.
Upon learning this, the officer informed Moon of the same, and advised him that he was under arrest. Moon rapidly shifted the car into drive and sped away. Riley drew his duty weapon, a Glock 9 mm pistol, and fired five shots at the departing vehicle. None of the shots made contact with Moon or his vehicle.
State law defines deadly force; RSA 627:9 explicitly provides that: “Purposely firing a firearm capable of causing serious bodily injury or death in the direction of another person or at a vehicle in which another is believed to be constitutes deadly force.”
In December 2016, Belknap County Attorney Melissa Guldbrandsen issued her report on the propriety of the shooting. She found it difficult to conclude, given the state law and all of the circumstances, that the discharge of the firearm was reasonable in this case.
The officer’s gunfire – aimed at the fleeting motorist – was clearly a use of deadly force, when lesser force, such as attempting to disable the vehicle, may have been more appropriate. She said, “As such the officer’s force was not in proportion to the possible threat of future harm posed by Moon.”
In the second case, three criminal charges were brought by the Strafford County Attorney last year after the Rockingham County Attorney properly stepped aside from investigating one of the probation-patrol officers with whom she regularly works.
Probation-parole officer David Burris was with another officer when they went to a parolee’s home to serve a warrant for Andrew Holmes’ arrest. Holmes was “taking off in a motor vehicle” when Burris shot three times at the vehicle. Holmes was not injured.
Burris was indicted by a Rockingham County grand jury Oct. 5, 2016, for three felony counts of reckless conduct, according to public records. Each of the indictments allege that on Dec. 1, 2015, Burris shot a round at a car occupied by Holmes, during the course of a probation check. The indictments state that Burris placed or may have placed Holmes and/or local residents in danger of serious bodily injury by means of a deadly weapon. The three charges for reckless conduct were the same for each of the three shots.
Finally, former Attorney General Joseph Foster’s investigation into the fatal 2013 shooting of nonviolent motor vehicle operator Wendy Lawrence in Manchester illuminates some important lessons to be learned.
NH State Trooper Chad Lavoie had listened in on the scanner about a chase involving Lawrence. Lawrence had been speeding on the interstate, but she obeyed all speed and stop signs once she entered Manchester at exit 9S. Lavoie pulled his cruiser in front of the car Lawrence was driving and tried to prevent her from driving off after she stopped at a stop sign in Manchester. From when he exited his cruiser to when he emptied his clips of 11 bullets at her windshield, killing her, less than 10 seconds had elapsed. He claimed she was moving her car towards him as a “weapon.”
Was her car even moving? The way to find out was to check the car’s data recorder or “black box” that is triggered when there is a collision, because Lavoie claimed Lawrence had just rammed his cruiser.
After a two-week investigation, Attorney General Foster concluded that the use of deadly force was justified, despite the shots being fired in a Manchester residential neighborhood at dinnertime on a Monday night. No analysis was done of the locational danger of firing with houses in the immediate area, as was considered in the three charges against Burris discussed above. The black box evidence showing that the car never moved was not factored into the decision. Nor did the Attorney General factor into his analysis the propriety of shooting at cars.
The US Department of Justice Civil Rights Division has long concluded that shooting at a moving vehicle is inherently dangerous and almost always counterproductive. According to the DOJ: First, bullets fired at a vehicle itself are unlikely to stop or disable it. Second, the bullets may strike a passenger who is not a threat or who may already be a victim. Third, bullets fired into a vehicle may not result in surrender, but may instead provoke a fight-or-flight response in which the driver is even more determined to escape or stop the source of gunfire. Fourth, disabling the driver may result in a runaway vehicle that endangers the lives of the officers or bystanders.
Faced with a threat posed by a moving vehicle, the appropriate response ordinarily is to avoid the vehicle’s path, take cover, and summon additional resources to maximize safety and obtain a tactical advantage.
These three cases explain why state and local governments should be proactive in making clear that shooting at a moving car is not permitted. Any review of such a shooter’s conduct should be performed by another department or entity that is not connected to the one employing the shooter or closely affiliated with the shooter’s agency.
Only independent review will maintain public confidence in the outcome of such incidents.
Chuck Douglas is a former Superior and Supreme Court judge practicing in Concord.