When Is It OK for Cops to Shoot a Moving Car?

Is a cop feeling threatened a good enough reason for them to open fire on a moving vehicle?

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Jan 30 2015, 6:57pm

Photo via Flickr user Hugh Graham

Around 200 protesters gathered outside the Denver Police Department's district two station Wednesday night, some pounding on the windows of the building while the now-familiar chant of "No Justice, no peace!" rang out from the crowd. A video projector was hooked up to a car battery, beaming the image of 17-year-old Jessie Hernandez onto the wall of the station.

Hernandez was shot to death on Monday by two Denver police officers, one of whom suffered a broken leg either when the car Hernandez was operating drove into him or as he moved to get out of the way. There are conflicting accounts of what exactly happened that night, but also more than enough anger to inspire a handful of protests in Hernandez's name.

According to the Denver Police Department's initial account, Officers Gabriel Jordan and Daniel Greene were investigating the report of a suspicious vehicle—it was allegedly stolen—in the city's Park Hill neighborhood. As the officers approached the car on foot, the driver accelerated toward them, at which point shots were fired.

But does it ever make sense for cops to shoot moving cars, even when their own lives are in danger?

An anonymous witness who claims to have been in vehicle with Hernandez told local 9News that police opened fire before Jordan's leg was broken. The Denver Police Department declined to comment to VICE on the ongoing investigation, directing us to a press release on their Twitter account, which says, "Although we are still determining the facts of the incident, the Denver Police Department is committed to transparency and once the investigation is complete all information obtained during the investigation will be made available to the public."

This is at least the fourth case of Denver Police opening fire on a moving vehicle in the past year, two of which resulted in deaths. The most well known is the July killing of 20-year-old Ryan Ronquillo, who was shot as he tried to escape in an allegedly stolen car after cops found him at the funeral of a deceased friend. Nicholas Mitchell, the city's second independent monitor for cops, had been conducting an investigation into the trend even before the Hernandez shooting.

According to Robert J. Kane, professor and director of the criminology and justice studies program at Drexel University, cops opening fire on a moving vehicle is "not an uncommon problem," but policies differ among departments around the country as to whether a moving vehicle constitutes a lethal threat to officers.

In Kane's opinion, though, opening fire at a moving vehicle only makes the situation worse.

"If you shoot a car and hit the person, then the car becomes a moving missile," he told VICE. "The driver has no control over where the car is going to go. So if it crashes into a building or a bus stop and kills seven kids, was it really worth shooting at it? Even though the person may pose a threat, would you rather shoot at it now and risk hurting other people, or would you rather survey it, follow it, and try to stop that car in a controlled way?"

If initial witness accounts about Hernandez's death are accurate, it stands to reason that the officer's broken leg was the result of the driver being shot and an unmanned vehicle blindly rolling into him, or at least forcing him to awkwardly dodge it.

The policy of the Denver Police is to not open fire on a moving vehicle unless "the vehicle or suspect poses an immediate threat of death or serious physical injury to the officer or another person and the officer has no reasonable alternative course of action to prevent death or serious physical injury."

But the LAPD— not exactly known for its kid-gloves treatment of civilians—takes a kinder, gentler approach. Its policy states, "Firearms shall not be discharged at a moving vehicle unless a person in the vehicle is immediately threatening the officer or another person with deadly force by means other than the vehicle. For the purposes of this Section, the moving vehicle itself shall not presumptively constitute a threat that justifies an officer's use of deadly force. An officer threatened by an oncoming vehicle shall move out of its path instead of discharging a firearm at it or any of its occupants."

According to Craig Hartley, executive director of the Commission on Accreditation for Law Enforcement Agencies, it doesn't make sense to have a universal standard. "We leave it to organizational policies to make determinations about that," he said in an interview. "Sometimes that can be driven by a number of factors, like population densities and other issues."

Kane added that in addition to the issue of a police officer feeling that their own or someone else's life might be threatened, opening fire on a moving vehicle can be legally justified under the "fleeing felon" rule.

"If a known or suspected felon was trying to evade police custody, you can shoot him," Kane told VICE. "And that goes back to British Common Law, before the US was even an established nation. Over time, regulations around deadly force have been narrowed in response to Supreme Court decisions, and wrongful death civil lawsuits that police have lost. As far as I know, there are no laws and have been no Supreme Court cases that have said you can't shoot at moving vehicles."

Of course, a conviction of the officers in death of Hernandez would set a strong precedent, at least for Denver cops. The case has been moved to the office of District Attorney Mitch Morrissey, inspiring protesters and family members of Hernandez to arrive early Tuesday morning at the his office, demanding justice for the slain teen.

Despite city payouts of over $13 million over the last decade in civil lawsuits against the Denver police and sheriff's departments, Fox 31 reports that the last time a Denver district attorney prosecuted an officer for firing a weapon in the line of duty was 1992, and a jury found that officer not guilty. (This is not unique to Rocky Mountain State: The New York Daily News reported in December that over the past 15 years, there were 179 NYPD-involved deaths but just three indictments of officers, with none spending actual time in jail.)

The tragedy of Hernandez's death has struck the community hard in part because of her young age, but also because she was Latina and queer. Early in Wednesday's rally at the Denver Police Station, Theo Wilson of Art from Ashes, a youth program that worked with Hernandez, read a poem that the deceased teen had written during her time with the group.

"I am kind and respectful, others see me as a disrespectful teenager," she wrote, "and that's what gets me in trouble, but really I am a kid who wants a good education... I don't want trouble... I want peace."

Wilson added a few words of his own:

"We are running out of patience, and we running out of time. Hopefully there will be the type of systemic change that comes from their end. If that does not happen, we are going to take matters into our own hands."

Follow Josiah M. Hesse on Twitter.

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