Friday, February 15, 2013

Use of Force by Police During the Dorner Standoff: Legally Justified?


This past Tuesday, February 12, deputies from the San Bernardino County Sheriff's Department cornered fugitive murder suspect Chris Dorner in a Big Bear vacation cabin.  Dorner had been on the run for nearly a week after allegedly murdering two people in Irvine and then shooting two police officers in Riverside, one of whom later died from his wounds.  After being surrounded in the cabin, he apparently attempted to shoot his way out at least twice, fatally wounding another officer.  Details are still emerging about the precise timeline of events in the standoff that followed, but it appears that the SBSD eventually opted to deploy some heavy-duty CS gas into the cabin.  Within minutes of deploying the incendiary gas, the entire structure became engulfed in flames.  No attempt was made to extinguish the blaze as the cabin was consumed by the fire.  A body later discovered in the burned out rubble was determined to be Dorner's.

The usual cast of characters has now squared off to allocate blame / thanks / condemnation / praise.  The "back-the-badge" crowd has lauded the bravery of the heroes who selflessly gave their own lives to protect ours.  The good folks over at CopBlock.org blame the militarization of police in general for this debacle.  They accuse the SBSD of acting as judge, jury and executioner and question whether or not any effort was really made to take Dorner alive.

I want to spend some time analyzing the use of force by police in this situation to determine whether or not the burning of the cabin was legal or justified.  Of course, the San Bernardino County Sheriff John McMahon has publicly denied that his deputies intended to ignite the fire.  Transcripts from police scanners at the time contradict this official explanation.  Just before the incendiary gas canisters were deployed, officers were heard saying over their radios, "We're going to go forward with the plan, with the burner...seven burners deployed...and we have a fire".

Of course, not enough information has been made public to determine whether or not the Sheriff's Department started this fire intentionally.  For the sake of discussion, let's assume that they did, or at least that the SBSD knew that launching CS gas into a wooden cabin was likely to ignite a deadly blaze.

First-hand witness accounts also suggest that Dorner actually took his own life with a single self-inflicted gun shot to the head as the cabin burned around him.  I realize, therefore, that Dorner was not DIRECTLY killed by police.  Based on the limited information available, we can surmise that the fugitive died at his own hand, but that the SBSD also deployed their own "lethal force", and it is this use of potentially lethal force by police that I want to examine.

So assuming that the SBSD either intentionally lit the blaze, or else simply ignored the known risks that are inherent when igniting a flammable gas inside a flammable structure (the definition of "recklessness"), was that use of deadly force "legal" or "justified" under the circumstances?  Let's look at the laws.

Starting with the obvious: murder is illegal, even if committed by the police (see previous posts re: Kelly Thomas).  Of course, not all killing is "murder".  There are many circumstances under which police may lawfully employ deadly force in dealing with dangerous fugitives.  CALJIC 5.26 reads in relevant part:

Homicide is justifiable and not unlawful when committed by a public officer...when necessarily and reasonably committed in arresting any person charged with a felony, and who is fleeing from justice or resisting arrest.  

Now we break that down, element by element:

"Public Officer" includes any law enforcement personnel, like deputy sheriffs and local police.

"Necessarily and reasonably committed" is up for some argument.  Were any other options available to the officers?  This is a question that I'm not equipped to answer.  Considering that the cornered fugitive allegedly fired hundreds of rounds at the police during the standoff, killing one, I think that a judge is extremely unlikely to second-guess the tactical decisions of commanders on the ground.  Daylight was fading and officers feared that Dorner might have night-vision goggles, which could have given him a major advantage in the dark.

"Charged with a felony" is pretty self-explanatory.  The District Attorneys from both Riverside and Orange County had filed murder charges against Dorner before the standoff began.

"...who is resisting arrest" also seems pretty well-established.  Again, Dorner was actually shooting at officers who had the cabin surrounded.  He had already killed two other officers during the manhunt and had demonstrated his intent to kill others.

Based on the letter of the law, I believe that the police were legally justified in using deadly force against Dorner.  I am not a tactical expert and have never served on a SWAT team, so I will leave all counter-factuals to other armchair quarterbacks.  Rather than arguing the strategic merits of burning down the home, I want to focus on the law of the matter.  Did the police "murder" Dorner (or at least break the law by intentionally employing deadly force)?  I don't believe that they did.

Mark your calendars: I am defending the police here.  And I'm not alone on this one.  David Klinger is a use-of-force expert at the University of Missouri at St. Louis.  He told the LA Times, "What difference does it make if one of the officers puts a round in his head, drives the armored vehicle over his body when they're knocking the building down, or he dies in a conflagration?  If he is trying to surrender, you can't do any of those things.  But if he is actively trying to murder people, there's no doubt that deadly force is appropriate and it doesn't matter which method is used to deliver it".

Sorry, CopBlock.org.  No hard feelings, just the law.  I gave you a couple links if that helps.

Am I missing the point?  Feel free to comment below.  Thanks for reading.