By Darren Smith, Weekend Contributor
On July 17th of this year a Seattle Police Officer used deadly force resulting in the death of man sought in an earlier felonious assault against another officer. It is the opinion of your author that this shooting will be held to be a justified use of force based on the circumstances made available to the public at this stage. It shows both an example of what constitutes a “Justifiable Homicide” by state law and how little time officers often have to make such decisions on its use.
Events leading to the shooting began at 03:55 AM with the suspect allegedly intentionally ramming a patrol car travelling southbound on Interstate Five, causing the officer inside to lose control and crash. The offending driver left the scene. The officer suffered minor injuries and was taken to hospital.
Investigators identified the suspect vehicle as a gray Mazda based upon debris and other evidence at the scene.
Based upon the SPD supplied dash-camera video some events are as follows:
At 04:37 a patrol unit discovered a possible matching vehicle parked in the 6500 block of Ravenna—a street about one mile from I-5.
04:38:08 Officer calls radio to advise he is out with a gray Mazda having a Washington license plate. It has passenger front end damage (from a collision).
04:38:51 Officer exits patrol car
04:38:53: Officer makes verbal contact with suspect, stating in a calm manner, “Morning, Officer [inaudible] Seattle Police Department. You are being audio and video recorded… Over there. [a statement directing the suspect to move to another location]” He finishes this statement at 04:38:56.
Less than one second after telling the suspect to move, the officer can be seen on the video reacting to something and begin to run to his right. He grasps his holstered pistol with his right hand to begin drawing. His left hand appears to be holding a flashlight. He continues to retreat away from the suspect and at the same time orders the suspect to “drop the knife.” The suspect holds what reportedly is a large knife in his right hand in an aggressive manner–held high consistent with an attack. He bears down on the officer. The officer continues to put distance between himself and the attacker who continues to rush the officer.
At approximately 04:38:59 the first shot is fired, two more shots continue in quick succession. The suspect drops to the street during which time the officer again orders “drop the knife”. Distances observed appear to be about ten feet.
The suspect died of his wounds at the scene. Police later identified him as twenty-seven-year-old Samuel Smith.
Here is a video release of both the collision on Interstate Five and the subsequent contact with Mr. Smith.
From the information presented by Seattle Police Department through the news media your author has the following observations.
At the beginning of the case Suspect Smith committed what officers believe to be an intentional attack against another police officer. In Washington State, the use of a vehicle to unlawfully cause injury to another is considered a felony assault. Any criminal assault against a police officer is at least Assault in the Third Degree, a class C felony.
The shooting officer found a vehicle matching a description of the vehicle used in the assault on Interstate Five. He stated during his initial observation of the Mazda had front end damage on the passenger side. Front end damage would be consistent with the collision on I-5.
Seeing a person near this vehicle, the officer will have reasonable suspicion to detain that person for investigation of the crime occurring on I-5. During this time the officer may order an individual to move to a particular location and could exercise caution due to the possibility the detained might assault the officer as is the case with the previous incident.
The officer, evidenced by verbal statements and intonations, does not appear to be threatening Smith upon his initial contact, that is, prior to the attack upon the officer.
It is about one second after the officer completes his lawful order for Smith to move that Smith begins his assault against the officer. The officer’s speech changes immediately to that of heightened orders and are consistent with that of an officer being attacked. This causes the officer to retreat and at the same time begin drawing his firearm.
Once in view of the dash-camera, the suspect is holding out in his right hand what is later identified to be a large knife having a ten inch long blade. This type of weapon is intrinsically a deadly weapon when used against another person. The length and construction of such is sufficient to cease great bodily harm which under RCW 9A.04.110(c) is defined as:
“Great bodily harm” means bodily injury which creates a probability of death, or which causes significant serious permanent disfigurement, or which causes a significant permanent loss or impairment of the function of any bodily part or organ.
RCW 9A.04.110(6) by definition shows the knife, as well as the vehicle, to be a Deadly Weapon:
“Deadly weapon” means any explosive or loaded or unloaded firearm, and shall include any other weapon, device, instrument, article, or substance, including a “vehicle” as defined in this section, which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or substantial bodily harm.
Here the shooting officer ordered the Smith to drop the knife. Smith did not do so and advanced on the officer in a manner consistent with an attack. It is reasonable to assume that given these immediate circumstances the officer would have a fear for his life as would any other person in the same situation.
The officer fired three shots in quick succession. Once the shots were fired the suspect dropped to the ground, ceasing at that time, according to the video shown, to threaten the officer. The officer did not continue firing at the suspect.
The use of the three shots is reasonable. Shots to a human are not always immediately incapacitating. In fact it is not uncommon for suspects to be hit with more shots than this and continue to commit furtive acts. Officers are trained, under many scenarios, to fire double-taps (two shots in succession) or under some training methods and schools of thought are to fire a double-tap to the center mass of the torso and one shot to the head per volley and repeat if not incapacitating. There also exists the possibility of the officer missing some of the shots.
Another issue to be examined is if other reasonable alternative to the use of deadly force appeared to exist in the mind of the officer at the time of the shooting.
The officer had a flashlight in his left hand. If the officer was to incorporate this flashlight, an ASP collapsible baton, or a Taser into his defense he very likely would have been unsuccessful with the latter two requiring him to engage in hand-to-hand combat with Smith in which the officer would be defending himself with non-lethal instruments against a deadly weapon. A Taser, being a less-than-lethal tool is not indicated for hand-to-hand or short distance defense against a deadly weapon due to the possibility of a failure to effectively impact the darts and incapacitate the offender. Because of this standard training made to law enforcement officers is to not use a Taser in a deadly force situation. It is unknown to your author if the officer was equipped with these tools but even if so they would have not been a safe choice for the officer in the assault against him.
There is also a statutory legal standard for which the officer’s actions may be justified in committing this homicide.
RCW 9A.16.040 codifies how a law enforcement officer, or person acting under his direction, may cause a “justifiable homicide” against another person.
(1) Homicide or the use of deadly force is justifiable in the following cases:
(a) When a public officer is acting in obedience to the judgment of a competent court; or
(b) When necessarily used by a peace officer to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty.
(c) When necessarily used by a peace officer or person acting under the officer’s command and in the officer’s aid:
(i) To arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony;
(ii) To prevent the escape of a person from a federal or state correctional facility or in retaking a person who escapes from such a facility; or
(iii) To prevent the escape of a person from a county or city jail or holding facility if the person has been arrested for, charged with, or convicted of a felony; or
(iv) To lawfully suppress a riot if the actor or another participant is armed with a deadly weapon.
(2) In considering whether to use deadly force under subsection (1)(c) of this section, to arrest or apprehend any person for the commission of any crime, the peace officer must have probable cause to believe that the suspect, if not apprehended, poses a threat of serious physical harm to the officer or a threat of serious physical harm to others. Among the circumstances which may be considered by peace officers as a “threat of serious physical harm” are the following:
(a) The suspect threatens a peace officer with a weapon or displays a weapon in a manner that could reasonably be construed as threatening; or
(b) There is probable cause to believe that the suspect has committed any crime involving the infliction or threatened infliction of serious physical harm.
Under these circumstances deadly force may also be used if necessary to prevent escape from the officer, where, if feasible, some warning is given.
(3) A public officer or peace officer shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable pursuant to this section.
(4) This section shall not be construed as:
(a) Affecting the permissible use of force by a person acting under the authority of RCW 9A.16.020 or 9A.16.050; or
(b) Preventing a law enforcement agency from adopting standards pertaining to its use of deadly force that are more restrictive than this section.
It could be argued that the officer did not know for certain that Smith was in fact the person who assaulted the officer on I-5 (your author does not have this information). We will then look at another section of the RCW that is applicable.
The officer is exercising a lawful duty and upon the assault by Smith against him he will, according to what is observed in the video, have probable cause to make an arrest against Smith for a felony assault against him.
In addressing section (2) having seen that Smith could have at least likely, in the mind of the officer at the time based upon his search for the driver of the I-5 crash, made a reasonable conclusion that had Smith escaped, he can show a propensity to commit another assault against other officers, especially in light of the clear and present assault against this officer. Had Smith successfully fled the area there is a dangerous possibility that further harm could have been inflicted against other officers or members of the public.
With regard to the Warning under section (2), the shooting officer ordered Smith to drop the knife.
Outside the statutory provisions of RCW 9A.16.040, there would also be a common law provision of self-defense in the ordinary manner.
It should also be noted for the purpose of the use of force, the standard is the “amount of force necessary to overcome resistance.” It does not mean that the officer must only match the level of force threatening them, but is authorized to reasonably use greater amounts of force than that used against him.
While the facts presented by the Seattle Police certainly do not constitute the entirety of those that will be presented in the final report, given the totality of the circumstances the shooting will most likely be held to be justified.
By Darren Smith
Seattle Police Department
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