The Miami Beach Police Department is poised to change its deadly force policy to now prohibit an officer from discharging his or her firearm at a vehicle unless an occupant displays a weapon–not to include the car–or shoots at them. This move stems from a 2011 incident involving officers shooting at a motorist who tried to run over five Miami Beach police officers.
That driver, Raymond Herisse, was shot by officers of both the Miami Beach and Hialeah police departments after his violent behavior during Urban Beach Week. Herisse died at the scene. A video of the end of the incident went viral. The last Miami Beach Police Department shooting involving a suspect and vehicle took place in 1993.
Despite three years having elapsed, the Herisse shooting is still an on-going criminal investigation, though the MBPD reported to FDLE that the shooting was justified. Because it is an incomplete investigation and due to the fact that I was not there, I will not comment on the shooting. However, I do have something to say about the policy change.
Adopting a restrictive policy that interferes with officers defending themselves and citizens endangers lives. Leaders should be cautious not to pit civil liability against public safety in a decision such as this. The Herisse case is undecided. In the previous police shooting of Clement Lloyd in 1993, the officer was acquitted. These are the two controversial incidents that drove the decision to alter policy.
Years ago, I was in charge of our SWAT element when a Vice Unit buy-bust went sour. The suspect tried to flee with our undercover officer and confidential informant in his car. During the attempt, he struck one of my SWAT guys, in addition hitting an occupied taxi cab. Our element neutralized the driver. Based upon the circumstances and suspect’s actions, the outcome was ruled justified under state statute and by our General Orders. This would not have been the case in Miami Beach.
Policy manuals are not dynamic documents. Words alone cannot account for all the variables in a deadly force encounter to provide a binary answer of “yes or no” in a fluid scenario. Lethal force policies usually incorporate discretionary language to the effect that its use is permissible when the officer or a citizen is faced with imminent death or great bodily harm.
The term “imminent” is the active ingredient here and the one which will determine whether a use of deadly force is reasonable and necessary, given that death or great bodily injury is about to occur. In the type of policy revision proposed by Miami Beach, an officer would be justified using deadly force to defend himself from a bad guy wielding a three ounce pocket knife, but not justified if a suspect is hurtling straight at him with a two-ton automobile.
A spokesman for the Miami Police Department, which has a policy similar to the one proposed by Miami Beach PD, opined, “Logistically, getting out of the way is probably more effective than firing at the car.” Well, no sh*t. Thanks for the advice, but that ain’t always possible, friend.
Every year, an average of 13 police officers are struck and killed by motor vehicles (NLEOM). Many, many more officers are injured. Law enforcement often operates in close proximity to cars and trucks because that is where our perpetrators are. It is not always possible to find cover from a vehicle, since they are operated on roads, parking lots, and open areas which are naturally devoid of obstructions.
As an FTO, I tried to find time to teach rookies about vehicle avoidance, turning arcs, and pivot points in the same way we instruct them about safe approaches, fatal funnels and slicing-the-pie as they pertain to structures. The average citizen does not have to think much about these things, but as a cop, they can help you return to your family at the end of watch.
Personally, I have had to make many shoot-don’t shoot decisions when facing felons behind the wheel, both on the street and in SWAT. I believe I always made a rational decision based upon the information I had known at the time and given the danger that existed in the moment. I never had to hesitate because of a blindly written directive.
Police officers and deputy sheriffs should not be forbidden from defending themselves or others during a critical incident. My feeling is that an ill-advised, trustless restriction may let administrators and activists sleep better at night, but it can be the stuff of night terrors for the line level officers out there in the dark.