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Use of Force: Do Critics of Miriam Carey Police Shooting Have a Case?

The law deems "reasonable use" must be based upon the facts available to the officers at the scene.

by
Jack Dunphy

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October 7, 2013 - 10:13 am
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She was unarmed, they say. And she suffered from postpartum depression — and she had a baby in the car. She didn’t hurt anyone. So why did the police have to shoot her? Why didn’t they just shoot out the tires, or use rubber bullets, or do any of a thousand other things other than what they did? Why, why, why?

Today we know that Miriam Carey, the woman shot and killed by police in Washington, D.C., last Thursday, was neither a terrorist nor a hardened criminal. And we know she was not armed, at least not in the sense the term is usually employed. But in effect she was a criminal, and she did indeed have a weapon: a 3,600-pound car that she used to ram a security post near the White House, where the incident began.

In evaluating what any individual officer did or should have done in the succeeding eight minutes, it’s important to place oneself in the position of that officer. In light of what any of those officers knew about Carey when the incident began and through those eight minutes — which is nothing at all — was it unreasonable for them to suspect that she may have been a terrorist, or that she was otherwise motivated to harm the president or others at the White House? When she fled from that initial encounter, rather than drive into a random neighborhood in Northwest Washington, she drove straight to the Capitol. There, with several police cars in pursuit, she drove onto a sidewalk and right up to another barricade before suddenly backing into a police car and nearly striking several officers.

Would any reasonable police officer not be even more inclined to believe an attack on the government was taking place?

Even then, after being fired upon as she drove away (about which, more later), Carey did not continue north on First Street NW and away from the Capitol and the surrounding government buildings as she could have. She instead turned east on Constitution Avenue, skirting the Capitol grounds and bringing her past the Senate office buildings and within a block of the Supreme Court. This behavior fit the profile of one who had made a list of specific targets and would press her attack until she either succeeded or was stopped.

If a police officer is not at this point thinking something truly dangerous is afoot and that he must take every reasonable step to prevent it from continuing, he is in the wrong line of work.

Yes, it is lamentable that Miriam Carey was killed, and all the more so that she chose to bring her young daughter along for her Road Trip to Doom. But one must ask of those who, now apprised of what we’ve since learned about Carey, insist that the officers should not have shot her: What would you have had them do?

Any use of force by a police officer must be judged based on facts reasonably known to the officer at the time. Or, as the Supreme Court put it in Graham v. Connor, “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” (And note that Graham v. Connor arose from an incident in which police officers erroneously — but reasonably, according to the court — believed they had stopped a robbery suspect.)

Suppose for a moment a set of facts different from those that unfolded on Thursday, though one so similar as to present identical options to the involved officers:

A female driver with a young child as passenger rams a sports car into a barricade near the White House, then leads officers on a chase to the Capitol, where she drives onto the sidewalk and right up to a barricade, the only obstacle between her and the Capitol steps. Unable to proceed forward, she then backs into a police car and swerves along the sidewalk, in so doing nearly striking some of the many police officers present, some of whom fire at her. She then drives along the outskirts of the Capitol grounds. But police commanders, fearing a public relations backlash, order restraint and forbid the officers from using any more deadly force to stop her. She then crashes through the barricades lining the sidewalk at Constitution and Delaware, coming to rest at the steps of the Russell Senate Office Building. She then detonates the 500 lbs. of explosives she carries in the car, killing dozens, including some senators.

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Top Rated Comments   
Zimmerman was prosecuted for shooting and killing when he had far more justification for doing so than these various "cops" had. "All animals are equal, but some are more equal than others".
1 year ago
1 year ago Link To Comment
"a strong leavening of retired LEO's, but is mostly civilian. "

That is a fatal error. Fatal to liberty, that is.

LEOs ARE civilians.

If you are not a sworn member of one of the 5 branches of the Armed Forces, you ARE a civilian. You are part of and subject to the civil authority, not the UCMJ.
1 year ago
1 year ago Link To Comment
Mr. Dunphy:

I am a retired Peace Officer [28 years]. For the record, I have been shot at on the job [really did not like that], and have been a fraction of an ounce of trigger pull from killing a kid with a gun who had been shooting at another kid. Did not like that either.

We discussed this in an email group that has a strong leavening of retired LEO's, but is mostly civilian. Noting that the "perspective of the officer" that you correctly cite is also influenced by the training received and policies you operate under; I am taking the liberty of including part of my contribution to that thread:

===========quote===============
1) the vehicle was at the outer edge of their perimeter, and even if it was a VBIED and it was detonated, the priority protectee was out of the blast zone. It was at least two blocks away from the White House. Probably more. The reason all that park space is now part of the security zone is to provide just that buffer.

2) hitting a stanchion/barricade, bouncing off it, and fleeing is not a penetration of the protected zone. At that point, there is no immediate threat to the protectee.

3) a fleeing vehicle, in public traffic full of civilians is not a free fire zone. Yeah, you go after it. The first 9 shots apparently were fired as it was fleeing the area of the White House. Hitting a moving target, at what gives every appearance of being outside of effective pistol range [have not heard of any long guns being fired], is damn near impossible. But those rounds do not just vanish if they miss. Yeah, nearly hitting the other officers means you go get whoever, but it is not probable cause to open fire on a public street. Does a regular cop open fire on everybody who tries to elude? What would happen if he did? Or are you saying that being a Federale places you outside the standards every other cop has to follow?

4) she was stopped outside the Capitol. Was there an attempt to apprehend, or did they just go in and shoot her? What probable cause to shoot? It is not exactly unusual to remove someone forcefully from a vehicle. And there is very little gentility involved. They get introduced to Mr. Dirt firmly and cuffed. The process frequently involves physical and emotional trauma on the person extracted. That is not a problem. Using deadly force with no legal probable cause is a real problem when someone is acting under color of law. And right now, that seems quite likely.

If the number of rounds I have heard is accurate [26 total], there were 17 rounds fired after she was stopped. How many rounds hit her? Were they just spraying fire as they got to the car? What probable cause, and what would happen to a regular cop who did that?

The SS and Capitol Police [who are the only ones who fired] should not be above the law. And there should not be "special" laws for Federal law enforcement that absolves them of following law enforcement standards. If they are above the law, they are just political thugs, and every citizen has the right to regard them as such and respond accordingly.

Not saying she was innocent. She may or may not have been in full squirrel mode. She may have had hostile and dangerous intent. Taking her down HARD was understandable. Killing her extra-judicially is not. Wearing a badge is a responsibility, not a sign of feudal power over the peasants.

Not saying that the SS and Capitol Police are necessarily guilty. But prima facie, it sure looks like it. And in the absence of a real, credible, unbiased, investigation; the public has every reason to assume that they are, and that if they get off without said credible investigation there is enough precedent for people to believe that they got away with murder. I know from my experiences and observation, it looks even worse than it does to the general public.

YMMV

===========end quote=====================

Subotai Bahadur
1 year ago
1 year ago Link To Comment
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All Comments   (66)
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1 year ago
1 year ago Link To Comment
my friend's mother makes $79 hourly on the computer. She has been out of a job for nine months but last month her check was $15237 just working on the computer for a few hours. try this out.......WWW.Rush64.COM
1 year ago
1 year ago Link To Comment
This in response to Subotai Bahadur We also have here a matter of fire discipline. People that use revolvers are more likely to aim carefully and make each shot count. People using a semi-auto pistol tend to think in terms of firepower---shoot many times instead of aiming carefully. To be sure, in the 'fog', one tends to snap-shoot, hoping that one bullet out of many will hit the target. Further, a shorter barrel leaves one with a lesser sight plane than a longer barrel. Most police officers tend to use a shorter barrel. There is a big difference between a seven or eight inch barrel and a five incher or less in this respect. Older police officers would know more about all this, they having used revolvers and semi-autos of various types over their careers. Their feedback on this would be informative.
1 year ago
1 year ago Link To Comment
If I were a terrorist planning an attack, I would strongly consider sending out a subordinate to do something like this just to soften the police. Send out someone who acts erratically and seems like a threat, but when stopped using deadly force turns out to be no threat at all. Make people question the officers' use of force so that they will be hesitant to use it when the real attack is launched.

Just a thought.
1 year ago
1 year ago Link To Comment
We've all seen the video of the escape from the barricade, but where's the video of the termination of the chase (and the termination of the lady) at the Capitol? It must exist. That place is probably one of the most covered locations on Earth, in terms of surveillance.
1 year ago
1 year ago Link To Comment
Jack, I've read a lot of your columns and sometimes you provide some useful insight into police situations but, while I doubt you realize it, the greatest insight you provide is the insight you give us into the mind of cops.

You have a dangerous job so it is ok for you to be obnoxiously arrogant and and you are never wrong, everything you do can be justified.
1 year ago
1 year ago Link To Comment
now that we have been shown that is OK to shoot and kill a driver in this situation, can we get drones to take out other high speed chases that put people in jeopardy.

and maybe if we did take out the high speed pursuits, people wouldn't do that any more.
1 year ago
1 year ago Link To Comment
One thing we can be sure of is that when an islamic terrorist does drive a car loaded with 500 pounds of explosives right up to the Senate Office Building, there won't be a cop in sight.
1 year ago
1 year ago Link To Comment
I am sure, then, that Dunphy will give the same consideration to any homeowner who is caught unawares by a SWAT team breaking into his home in the middle of the night, unannounced. Oh wait, he won't.
1 year ago
1 year ago Link To Comment
People watch too much TV when it comes to their criticism of law enforcement actions. First, no shooting is a good shooting, it's either justified or it's not. The criteria for a justified shooting in ALL law enforcement cases is whether or not the public or the police are in danger of being seriously injured or killed by the actions of the suspect. Does the suspect have a weapon capable of causing serious bodily injury or death ? Check: A 3000 lb vehicle, is the suspect using the weapon, has the suspect used the weapon or threatened to use that weapon? Check: Yes to all 3. Has the suspect been given warning of the use of deadly force if the suspects actions continue (if time and safety permit it)? Check: Yes. Without the Police having knowledge of this woman's intentions, and witnessing her actions (Attempting to ram White House Gate, striking a Uniformed Secret Service Officer and fleeing, failing to stop for Police, ramming Police cruisers and attempting to run over officers after she is stopped) the shooting is "justified". The public reacts on emotion, the Police have to react to a danger and do their job to protect the public from that danger, it's not always popular and it's not always pretty and clean. In this case the Officers were left with little options not knowing what the woman's intentions were, for all they know she could have been a "suicide bomber", after all we are talking about Washington, D.C. here. Stop trying to treat this incident like it was a minor motor vehicle infraction stop. It is an unfortunate incident for all involved, I am sure that none of these Officers are carving a notch in their gun grips and celebrating, but they did their job without the knowledge we all have now. Had they not done so, maybe she would have blown up something in DC because we did not know that she was a domestic terrorist. We klnow now that was not the case, but no one knew before that.
1 year ago
1 year ago Link To Comment
Except you seem to skip over the fact at the end of the chase her vehicle WAS stopped - and then they shot her instead of trying to remove her from the vehicle as would have happened in any other city in America.
1 year ago
1 year ago Link To Comment
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