Decisions on police shootings rest on ‘reasonableness’ question

In police shootings, the main question is: “Was it reasonable?”

When police shoot at someone – as happened this past Monday when three Wichita officers fired, critically wounding a car driver allegedly backing toward them in an alley during a chase – the underlying legal question is whether they reasonably believed that they or others were in imminent danger, lawyers and experts say.

Including the alley gunfire, shootings by Wichita police have killed four people and injured two others since January 2014, according to records the city provided Friday.

The U.S. Supreme Court has held that force must be reasonable. But the full analysis of whether a shooting is justified is more layered, James Thompson says. He is a Wichita attorney who has pending wrongful-death/excessive-force lawsuits against the city over two shootings by police: the 2012 deaths of 24-year-old Troy Lanning II and 45-year-old Karen Jackson. Thompson also has filed notice that he will sue over a 2014 shooting that wounded Stacy Richard.

Thompson said his understanding is that Wichita police “are taught to use the least amount of force necessary to accomplish the objective … which is stricter than the constitutional standard.” Police also are trained not to fire when they might hurt innocent bystanders, he said.

“They have to believe that themselves or someone else is in imminent danger, with ‘imminent’ being the key word,” Thompson said. “They should be looking at the time and space they have … to make a decision to fire. Time and space are two things that experts look at first when they try to consider if something was reasonable” and whether the officer was in imminent danger, he said.

Another factor experts consider, he said, is whether the officer created the situation that prompted a shooting. An officer can be given leeway if he finds himself having to act quickly in a volatile situation. On the other hand, if the facts show he acted recklessly – putting himself into a bad situation – it can work against him, Thompson said.

Geoffrey Alpert, a University of South Carolina criminologist who is a national expert on police use of force, said that under the U.S. Supreme Court reasonableness standard, any analysis has to look at the threat.

One question, he said, might be: Could officers retreat or get out of the way of a moving vehicle, instead of firing on it?

In other cities around the nation, officers’ firing on moving cars has stirred controversy. The basic concern, Alpert says, is that if the driver is shot, “then you have an unguided missile, so to speak, and you don’t know where it’s going to go.”

The WPD use-of-force policy says: “While not prohibited, caution should always be used when discharging a firearm, to fire from or at a moving vehicle.”

Another wrinkle is that an officer could violate his department’s use-of-force policy but not the Constitution, or vice versa, Thompson said.

Latest shooting

Reading from a statement hours after the latest shooting, Interim Police Chief Nelson Mosley said that during a chase around 4:20 a.m. Monday, after the initial officer was out of his patrol car in an alley, a white Chrysler “moved in reverse, heading towards the pursuing officer,” striking a 6-foot iron fence and “putting the officer at risk.” Two other officers arrived to help. “The officers discharged their handguns towards the driver as the vehicle moved towards the officers.”

The officers fired because the driver was backing toward them, and they shot from relatively close range, Mosley said in answer to a reporter’s questions.

After the driver was hit, the Chrysler “eventually stopped by crashing further down the fence line,” according to the statement.

The shooting occurred almost midway down a one-lane, fence-lined alley between houses on Wichita and Water streets, south of Harry. The alley was dark, and dust partly obscured the pursuing officer’s view, Mosley said.

Jo Lysdahl, who lives near the spot where the police car followed the Chrysler into the alley, said she heard a car “whiz by,” followed by police lights and a siren. Seconds later, it seemed to her, she heard six distinct shots.

“It all happened so fast,” Lysdahl said.

A neighbor told Lysdahl that police asked whether her house might have been hit by the shots. Crime-scene investigators are tasked with trying to account for every round fired.

“I’m confident saying there were no homes struck in the area,” Lt. James Espinoza said Friday.

The 45-year-old driver received wounds to his abdomen, leg and hand, and his condition had been upgraded to fair as of Friday, Espinoza said. Police can’t provide the man’s name, partly because of privacy concerns, he said.

A second man, who had been the original driver of the Chrysler during the chase but fled from the car into the alley, was caught hiding next to a loaded handgun, according to the narrative Mosley read. The 49-year-old was wanted on a felony warrant from Butler County and a misdemeanor warrant from Sedgwick County. The chase began when the officer spotted the car and had information that it was stolen, but it turns out the car had been recovered Saturday night, Mosley said.

Although the department is working on equipping all field officers with body cameras, the current camera supply is 60, and the officers in the alleyway weren’t wearing cameras, he said.

Mosley said the Police Department wants “to complete an accurate and timely investigation” for the District Attorney’s Office to review.

On Wednesday afternoon, investigators had returned to photograph the alley, including the damaged iron fence.

A 1996 shooting

In another police shooting, 19 years ago, District Attorney Nola Foulston cleared three officers in the death of a man who led police on a high-speed chase across Wichita, ramming a patrol car.

It happened one night in February 1996, when Eddie James, 24, was driving a stolen Chevrolet Suburban. The chase ended at Eaglerock Village Apartments, 7627 E. 37th St. North.

One officer fired 18 shots within three to five seconds, and “although that might sound excessive, Foulston said, it was not,” according to an Eagle article about her finding. “The officer fired as James gunned his engine, trying to ram the officers, she said.” The article went on: “Police shot James, she said, because they believed he was about to back over one of the police cars with his truck or force the police car backward on top of the officers.” James also had endangered the public, Foulston said.

An autopsy found that he had consumed a “substantial amount” of cocaine the night he died.

The investigation took 10 months, “mostly because an outside expert was asked to analyze the case,” the article said.

Not everyone agreed with Foulston’s ultimate finding. A witness who spoke with the newspaper after the shooting questioned the officers’ actions, saying it appeared to him that the Suburban had become trapped between a tree and a police car. “James did try to flee, the witness said, but the truck could only spin its wheels,” the article said. The man told the newspaper that the vehicle could not have hit the officers or escaped.

The determination of whether the latest police shooting is justified will rest with Foulston’s successor, District Attorney Marc Bennett.

Reaching a decision could take months, Bennett said Thursday.

This story was originally published May 9, 2015 at 3:18 PM with the headline "Decisions on police shootings rest on ‘reasonableness’ question."