“I popped one off.” : Rethinking Police Use of Deadly Force

By John Fullinwider

On the night of September 2, at about 8:30 p.m., Dallas police officer Branson Grisham used deadly force against an unarmed man in Far East Dallas. As police video later revealed, the as yet unnamed 59-year-old man was standing still with his hands in the air when the officer fired. “I popped one off,” Grisham said. He missed. The man was released, no charges filed, and everyone got to go home that night.

Chief Eddie Garcia suspended Officer Grisham for 45 days without pay on October 13, stating at a press conference that he had “some concerns about the tactics which led to this shooting.” But there is much more to this story, which goes to the heart of the use of deadly force in Dallas and throughout the country.¹

The deadly force policy of Dallas Police Department (DPD) includes the following general guideline:

Deadly force will be used with great restraint and as a last resort only when the level of resistance warrants the use of deadly force.²

This means that the use of force is applied on a continuum in response to the subject’s “level of resistance.” For example, suppose a subject is loud and disorderly in a restaurant; the level of force needed might only be what’s known as “verbal direction” by the officer: “Hey, let’s calm down.” Suppose the subject responds by cursing the officer and pushing over a chair; the level of force might increase to “soft empty hand control”: Officer places hand on subject’s shoulder, “Steady now.” The subject may escalate, shoving the officer, or throwing a punch. The officer now has several responses from “hard empty hand control” to use of baton or chemical spray or Taser (“electro-convulsive weapon”). Suppose the subject then pulls a gun or knife (“aggravated aggression”). Only at this point is the officer authorized to use deadly force.

The policy is clear: Officers are not to shoot unless they “reasonably perceive” that they face “imminent death or serious bodily injury.” Dallas officers “will not fire warning shots.” And “the use of deadly force is not allowed to protect property interests.”³

The policy echoes the governing Supreme Court ruling (1985) that deadly force can only be used when “the officer has probable cause to believe that the subject poses a significant threat of death or serious physical injury to the officer or others.” This opinion is the source of the common officer defense, “I feared for my life . . .” A later opinion of the Court (1989) added that the “reasonableness” of a specific use of force must be determined from the perspective of a “reasonable officer” on the scene.⁴

In department policy and in the relevant Supreme Court decisions, it is the officer’s perception of threat that determines whether shooting the subject is justified or not.

Officer Grisham shot at a subject and missed. Was he seriously injured or killed as a result of his poor aim? If he had followed policy, he should have been. Turns out Officer Grisham wasn’t in mortal danger at all. He ignored the clearly written policy, instead using the fairly common de facto policy of “shout and shoot.” Thank God he missed.

How often do Dallas officers shoot and miss in their use of deadly force? How reasonable, how accurate, are their perceptions of danger? How often do they in fact misjudge the threat of imminent death or serious injury?

I analyzed 231 incidents in which Dallas officers used deadly force from January 2003 – June 19, 2017.⁵ These incidents involved 233 outcomes (in 2 incidents, there were 2 victims). The Dallas officer-involved-shooting (OIS) database classifies outcomes of a shooting in terms of the subject being “Deceased, Injured, Shoot and Miss [or] Other.”

The shooting outcomes are as follows:  Deceased, 75 (32%); Injured, 72 (31%); Shoot and Miss, 83 (36%); Other, 3 (1%). Dallas officers, like Officer Grisham, shoot and miss their subjects more than a third of the time. Of the possible outcomes, we are lucky that shoot-and-miss is the most common. If not, this period would have resulted in twice as many fatal police shootings.

The larger point is even more stunning. The whole edifice of justification for the use of deadly force is built on the officer’s perception of the danger he, or a bystander, is in. If he perceives that he is in imminent danger of death or serious bodily injury, he can lawfully shoot the subject. But what if in fact he is not in such danger? Officer Grisham, after failing to kill his unarmed target, went home alive and without serious injury. More than 80 Dallas officers in the years 2003-2017 did the same. This common outcome, shoot and miss, strongly suggests that deadly force is used fully one third of the time when it is not in fact necessary or authorized.

Jurors generally do not second guess the “split second decisions” that officers make when the result is a dead subject.  Of the roughly thousand cases annually of people shot to death by police officers in America, on average less than 1% result in an indictment; even fewer cases produce a conviction at trial.

Five years ago, New York State authorized the New York attorney general to investigate and prosecute the deaths of unarmed persons at the hands of police, rather than local prosecutors. Of the first 43 cases investigated, none has resulted in a conviction. Prosecutors have stated that “the legal system remains tilted in favor of law enforcement.” New York Assemblyman N. Nick Perry said that establishing a legal definition of what qualifies as excessive force is essential so that jurors can determine if the police have broken the law. Without such a definition, Perry said, “there is no limit on the police officer’s perception and judgment in the situation, which is what leads to a lot of acquittals when there are strong cases that what was done was criminal.”⁶

In law and policy, the justification for a law enforcement officer to shoot a person in the United States must be spelled out more precisely. If we want to prevent shootings, and if we want accountability from officers, we cannot rely of an individual’s perception of danger. The standard for whether or not deadly force is necessary and justified must be found in the objective conditions of the encounter between an officer and a subject. A standard based in objective circumstances will provide officers, juries, and the public, a clear criterion on which to make decisions.

When to shoot?  Keeping in mind the continuum of force approach to a subject, we could create a policy in which a police shooting is only justified if a subject is using a deadly weapon, or threatening to use a deadly weapon (“aggravated aggression”). But even when a subject is armed, the encounter doesn’t have to end in death. Douglas Leguin, an elderly white man, started a fire in Far North Dallas on August 11, 2014. When firefighters arrived, he shot at them with an AK-47 rifle. When the police arrived, he fired at them. Police negotiated with him for several hours and finally apprehended Leguin without injury. He was giving TV interviews in jail that night, speaking of his intention to establish “the kingdom of Dougistan.”⁷

When not to shoot?  Let me illustrate an approach⁸ using examples from the past half century of police shootings in Dallas. We could write a policy that a police officer shall not use deadly force if:

1. A subject is unarmed, like when DPD killed Michael Moorehead in 1970 and Clinton Allen in 2013.
2. A subject is running away, like when DPD killed Juan Reyes in 1984 and Elias Portillo in 2016.
3. A subject is sitting in a parked or stalled car, like when DPD killed Genevive Dawes in 2017.
4. A subject is not armed with a gun – but is, for example, holding a screwdriver, like when DPD killed Jason Harrison in 2014.
5. The officer is working alone, like when DPD killed Kenneth Wayne Perry in 1976 and James Harper in 2012.

We could write a policy such that, in the event deadly force is used, officers shall not shoot multiple times without re-evaluating the necessity of additional deadly force. In 2010, DPD killed Tony Menchaca, who was obviously undergoing a breakdown of some kind, when he stood in an Oak Cliff parking lot, telling police, “I will make y’all kill me.”  The officers fired 23 rounds, fatally wounding Mr. Menchaca 16 times. Police found he had no weapons, only a crumpled scrap of a cigarette package that he had tried to fold into the shape of a gun. All officers went home alive; not one was injured.⁹

As a nation, as a city, can we end these unnecessary and preventable deaths at the hands of police? Congress failed to pass the George Floyd Act or any police reform measure, even after the largest protests against police brutality in history. The Grisham case shows us that the price for a Dallas officer of shooting at an unarmed subject, standing still with raised hands, is a 45-day suspension. Protests come in waves that no matter how big eventually subside. Transformational change in policing will only come as the result of a sustained resistance movement that, between the ocean waves of protest, continues like a water on a stone, drop by drop, to crack the foundation of injustice, to force the change or bring down the house.

Notes:

1. Reports on the shooting and suspension of Officer Grisham:

2. General Order 906.01.C.
3. General Order 906.02.D, G; 906.01.C.
4. Tennessee v. Garner, 471 U.S. 1 (1985); Graham v. Connor, 490 U.S. 386 (1989).
5. Author’s analysis of data from DPD’s database of officer-involved-shootings, 2003-2017, available upon request. Police dataset is here: https://www.dallaspolice.net/ois/ois.
6. See: https://www.nytimes.com/2021/02/26/nyregion/new-york-police-accountability.html

For NY AG’s report see: https://ag.ny.gov/SIPU

7. See: https://www.nbcdfw.com/news/local/suspected-gunman-expressed-desire-to-secede-police/117765/
8. For a scholarly treatment of this approach to using deadly force, see:  Zimring, F. 2017. When Police Kill. Harvard University Press, Cambridge MA, p. 219-246. Historical police shootings in Dallas from contemporary news reports.
9. See: https://www.nbcdfw.com/news/local/man-killed-during-standoff-with-dallas-police/1857701/