A law enforcement officer sees a man come out of a local convenience store. The man looks fervently in all directions; looks down at an object in his hands; and then begins running around the side of the store

Question

The temperature of the night is fairly cool, but above freezing. The officer believes that the man has exhibited actions that make the officer believe that he has either stolen something from the store or committed a robbery. The officer approaches the suspect, who stopped running when the officer commanded him to stop. As the officer approaches the suspect, the man turns with his hands in the pockets of his coat. The officer orders the man to remove his hands from his pockets. The suspect simply stands, facing the officer, with his hands still in his coat pockets. The officer notices movement of the suspect's right hand in the coat pocket. Thinking that the man may have a weapon hidden in the coat pocket, the officer draws his weapon; points the weapon at the suspect; and orders the suspect to comply with his order to show his hands. Immediately, the suspect pulls his hands from his pockets and points an object at the officer. Because of the darkness of the night and the sudden action of the suspect the officer assumes the object to be a pistol and fires his weapon in perceived self-defense. The officer, based on training, fires the weapon with the intent to only to stop the assault. The suspect is struck in the leg and drops to the ground. The officer approaches the fallen suspect and observes that the object thought to be a weapon is actually a candy bar. The officer contacts dispatch for emergency assistance from Life Care. The suspect is transported to the hospital. Further investigation reveals that the suspect had indeed stolen the candy bar along with numerous other items from the convenience store. During his trial, the suspect's attorney files a motion to dismiss the case based on unlawful use of force based on the fact that the defendant was proven to have no weapon in his possession. The motion is denied. The defendant appeals the case. What should the appellate court consider during the review of this case? What decision should the appellate court develop?

Answer 1

An officer must deal with the level of perceived threat. However, the officer should make every attempt to verify the threat before using deadly force. If the suspect has not fired a weapon at the officer or made any verbal threat to make the officer believe the suspect is threatening the use of deadly force, then the officer must retreat from the use of deadly force against the suspect. The appellate court should consider the existence of verbal threats from the suspect, if any exist. Additionally, the appellate court should consider whether the officer had sufficient coverage and time to rely upon further verbiage to determine if the suspect actually had a weapon. Did the officer have other means of determining if the suspect was indeed holding a weapon, such as a flashlight or floodlight from the patrol vehicle? Could the officer have waited for a back-up unit to help him or her deal with the suspect? The appellate court should find in favor of the officer's perception of the candy bar being a weapon unless other verifiable means were available, because the officer, although employing deadly force, fired his weapon to stop a perceived deadly threat.