E-Newsletter Edition: Novemer 14, 2007
Response Provided By: Jim Desmarais
Always note that state law may be more restrictive on police power than the U.S. Constitution.
When the SWAT team is in place should snipers be reporting back intelligence what procedure under the law (if any) is in place for an Incident Commander to direct a sniper to terminate the threat or hold his fire?
Short Answer: This question presents more potential negligence issues and some salient sub-issue that should be addressed. There are two distinct questions which will be taken in order.
When the SWAT team is in place should snipers be reporting back intelligence?
Having been the SWAT i incident commander several times this is more a tactical answer than a legal one. It is common sense at a SWAT situation where a sniper or snipers are deployed (usually a hostage situation or an armed barricaded subject) any person on the SWAT team, Department or civilian who because of their vantage point or personal knowledge is capable of relaying credible real time information to the incident commander should do so. This includes the sniper (more appropriately the spotter for the sniper). Having been the incident commander, it is common sense for the tactical incident commander to have as much information as possible, so the appropriate decisions can be made. Failure of a individual not relaying critical information in a timely manner could have tragic effects. Virtually all sniper schools instruct snipers that they have the dual roll of being and observer for the commanders at the scene.
What procedure under the law (if any) is in place for an Incident Commander to direct a sniper to terminate the threat or hold his fire?
The second part just is a basic Graham ii analysis“… to effect a particular seizure is “reasonable” under the Fourth Amendment….The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,”iii however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”iv A SWAT situation does not relieve officers of the restrictions imposed by the Fourth Amendment in the use of deadly force. Using the “totality of the circumstances” do the facts and circumstances known to the police at that time make it reasonable to use deadly force? The sniper will in most cases be unaware of what is taking place in negotiations (i.e. has it broken down and the trained negotiator informs the incident commander that he believes violence is imminent to the hostages), or what information has been learned from intelligence, (that suspect stated he will kill the first hostage at 2 PM). The sniper has to rely onto the incident commander in these situations and may have to act based on the knowledge of the incident commander not his personal knowledge. The second aspect of the second question: the incident commander instructing the sniper to hold fire, (or to fire). Quoting a recent case “While simply following orders is not a defense, instructions from a superior officer can support qualified immunity when the officer could conclude, from an objective view of the surrounding circumstances, that there was legal justification for the action” Harvey v. Plains Twshp., 421 F.3d 185 (3rd Cir. 2005). It is often the case that an individual officer (any officer) at a large fluid scene will observe facts which he could reasonably be construed that his life or the life of another is in immediate danger. The totality of the circumstances may dictate immediate action (force dangerous to human life). There are situations that a sniper will be the only one who knows that the life of a hostage is in imminent danger. Unless the sniper has specific knowledge that deadly force is justified or specific direction from the incident commander the sniper should use extreme caution before acting. Due to the fact that the sniper is usually some distance from the center of the scene, they may need to rely on others to determine when deadly force is necessary.
Comment: In looking at this question, if it is prompted by a SWAT Incident Commander who has a concern about a sniper, or a sniper looking for justification to act independently of the incident commander, then there is a problem. By the very nature of the type of work that a member of a SWAT team is expected to perform such concerns among members is unacceptable. A SWAT team member has to be superior in his abilities and self control than those of a regular officer. You will be held to a higher standard a standard where mistakes are less acceptable.
Regarding SWAT team members there should higher standards of selection, training and retention. Lack of these factors will open Pandora’s Box of Constitutional and negligence liability, which would be to