Police Warning Shots May Be In For A Comeback

Mar 28, 2017
Originally published on March 28, 2017 11:38 pm

Why don't the police fire warning shots? That's a question that comes up a lot, especially after controversial shooting deaths.

Last fall, the International Association of Chiefs of Police and 10 other law enforcement groups got together to work out a consensus policy on the use of force — a sort of model document for local departments that want to update their rules. When the document came out in January, it contained a surprise: It allowed for warning shots.

For police trainers and use of force experts around the country, that news is still sinking in.

"The idea of warning shots has been prohibited for decades in policing," says Lou Hayes Jr., a police officer and trainer with the Virtus Group Inc. "And to now open the door up again is pretty eye-opening."

There's never been a binding national rule against warning shots, but the IACP used to recommend that departments ban the practice. Leading agencies such as the New York Police Department have long had such bans in place.

The main concern is the risk. "When you raise the gun and blindly fire, you don't know where that bullet will land," says Massad Ayoob, a longtime cop and widely respected firearms trainer. "A few decades ago I followed a case in New England where the guy raised his gun, fired what he thought was into the air, and the bullet struck and killed someone on the top floor porch of a nearby tenement building."

Firing at the ground can be just as dangerous, especially on streets or confined spaces. And Ayoob says the payoff usually isn't what people imagine.

"Movies show people firing a shot in the air and the running man stops," Ayoob says. "And that just ain't how it happens in real life." Often, he says, the gunshots just persuade a suspect to run faster.

Return of an old tool

Ayoob says fear of mishaps drove warning shots out of policing by the time he started as a cop in the 1970s. But now it may be making a comeback.

"There was a lot of discussion," says the IACP's Terry Cunningham, describing the process that led the 11 law enforcement organizations to include warning shots in the new consensus use of force policy. Cunningham was struck by the anecdotes of situations in which warning shots saved a life — or might have, had they been allowed.

The new policy still sets strict conditions for warning shots:

1. The use of deadly force is justified;

2. The warning shot will not pose a substantial risk of injury or death to the officer or others; and

3. The officer reasonably believes that the warning shot will reduce the possibility that deadly force will have to be used.

But Cunningham says the motivation for the change is to give officers a little more wiggle room when faced with a threat.

"We're kind of entering into this new environment in use of force where everybody is trying to learn how to better de-escalate," Cunningham says.

Many police trainers have come to believe that overly rigid use of force rules, however well-meant, may sometimes leave officers with no other option than to kill someone. The new model policy is a response to those concerns.

"Why not give the officers more tools?" Cunningham says. "I think it's the right thing to do."

It's still up to local departments and trainers to decide whether to follow the national groups' lead on warning shots. So far, reactions have varied. In an email to NPR, the NYPD says its policy banning warning shots "will not be amended."

But trainers and experts are more positive. Greg Meyer, a retired Los Angeles Police Department captain and use of force expert, calls the new policy an "overdue good idea."

Shooting to wound

Dave Blake, a retired police officer who trains officers for high-pressure situations, says he is on the fence. He points to some research suggesting warning shots can persuade suspects to give up, but he thinks more study is needed.

"I don't think police officers are lab rats," he says. "And I think we need to be very careful with — because of political pressure or social issues — how far we go in mass implementation of new programs and policies."

Police trainer Hayes welcomes the new flexibility, but he says there will be pushback, especially from officers who worry about creating an expectation among the public that warning shots should precede every use of deadly force.

He says allowing warning shots also raises another, more controversial question: whether cops should try to shoot to wound.

Police usually scoff at the suggestion that they try to shoot someone in the leg before aiming at the suspect's center of mass. They call it "Hollywood thinking" because it assumes sharpshooting skills that are simply unrealistic, especially in a chaotic situation.

But in a recent blog post, Hayes said that the blanket prohibition against "shooting to wound" might have to be reconsidered once you've allowed for warning shots.

"A warning shot is essentially deadly force," Hayes says. "It's just purposely aimed away from a person. So if we're going to aim away from a person, why is there not some incentive to potentially aim for a nonvital area on a person?" Allowing warning shots, he says, may open the door to the idea of a "spectrum of deadly force."

That's not a logic most trainers accept, but firearms trainer Ayoob does worry that allowing warning shots "opens a can of worms." The rules allowing police to use deadly force are clear: If an officer reasonably perceives someone to be an imminent mortal threat, the officer is allowed to shoot. Adding the possibility of warning shots to that decision-making process could confuse things.

"If a danger ipso facto is that immediate, why are we taking our eyes off the threat and firing a warning shot?" he asks. "If deadly force is justified, deadly force should probably be applied."

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ARI SHAPIRO, HOST:

Especially after a controversial shooting death, our law enforcement correspondent Martin Kaste often gets the question, why don't police fire warning shots? Martin hears the question so often he decided to find out the answer, and that's when he learned that the conventional wisdom against warning shots is changing.

MARTIN KASTE, BYLINE: First, here's the short answer to that question. Warning shots are dangerous.

MASSAD AYOOB: When you raise the gun and blindly fire, you don't know where that bullet will land.

KASTE: That's Massad Ayoob. He's a longtime cop and a well-known firearms instructor. He can tell you some stories about warning shot mishaps.

AYOOB: A guy raised his gun, fired what he thought was into the air. The bullet struck and killed someone on the top-floor porch of a nearby tenement building.

KASTE: He says that's the kind of thing that drove warning shots out of policing by the time he started in the 1970s. These days, departments either discourage warning shots, or they ban them outright - the NYPD, for instance. But times are changing. Terry Cunningham is the deputy executive director of the International Association of Chiefs of Police.

TERRY CUNNINGHAM: We're kind of venturing into this new environment in, you know, use of force. And you know, we're - everybody's trying to learn how to better de-escalate.

KASTE: And in this new environment, the IACP has changed its mind about warning shots. It used to recommend a ban, but when it joined 10 other law enforcement groups to write a new national model policy on the use of force, it decided that there are some times when maybe warning shots could save lives.

CUNNINGHAM: We said, OK, if an officer's going to use a warning shot, then they could only use a warning shot if, you know, deadly force would be justified, number one, and, number two, that, you know, clearly they have a safe backdrop where they could fire the warning shot at. And there would have to be an explanation on why they decided to deploy the warning shot.

KASTE: The news of this change is still trickling out to the world of police training. Lou Hayes Jr. is a cop and a trainer with the Virtus Group. He likes the idea of giving police more options for these situations, but he also knows that many cops will not want that option on the table.

LOU HAYES JR.: The resistance from police officers is such that, oh, warning shots are stupid because what's going to happen is the moment that a police officer does not deploy a warning shot, the public is going to outcry and demand to know why another chance wasn't given to a suspect.

KASTE: If warning shots are against the rules, you don't have to explain why you didn't use one. Hayes says allowing warning shots also raises another problematic question for police. Why don't they shoot to wound?

Cops hate this question. They say it's Hollywood-thinking to expect them, in a chaotic situation, to shoot with that kind of accuracy. They're taught that when they shoot, they aim for the center of mass. But Hayes says this new opening for warning shots got him thinking about that, especially when he saw this scene of cops wrestling with a suspect on reality TV.

(SOUNDBITE OF ARCHIVED RECORDING)

UNIDENTIFIED POLICE OFFICER #1: Still going for it. Still going for it.

UNIDENTIFIED POLICE OFFICER #2: Stop. Police.

UNIDENTIFIED POLICE OFFICER #1: He's going for a gun.

UNIDENTIFIED POLICE OFFICER #2: He's got a gun.

UNIDENTIFIED POLICE OFFICER #1: He's got a gun.

HAYES JR.: What's happened there is officers are struggling over a gun in a man's waistband. And it would have actually been a case where a shot to somebody's leg may have been a real possibility here.

KASTE: What he's saying here is sort of heresy for most police trainers, but the point he's trying to make is that warning shots are this weird kind of deadly force in which you're aiming not to kill someone.

HAYES JR.: So if we're going to aim away from a person, why is there not some incentive to potentially aim for non-vital area on person? So you open the door for the idea of a spectrum of deadly force here.

KASTE: So a spectrum or maybe blurred lines because if there's one thing American police have come to rely on, it's the clear rules about when they can use deadly force. And that's why Massad Ayoob is cautious about adding warning shots to that mix.

AYOOB: Why are we taking our eyes off the threat and firing a warning shot? If deadly force is justified, deadly force should probably be applied.

KASTE: And that kind of clarity may be lost if police departments now give their officers the option of shooting not to kill. Martin Kaste, NPR News. Transcript provided by NPR, Copyright NPR.