Is there such a thing as "excessive lethal force?"

March 1, 2013 8:35 AM

If the LAPD had intentionally set Christopher Dorner's cabin on fire, would that have been a legal use of lethal force?

I've been curious about this and haven't found any answers. I know lethal force was legal, but are there laws as to the type of lethal force that can be used? Or is it just an anything goes situation? For the purpose of this question, let's assume all the facts are the same except the cabin was intentionally set on fire and Donner's death was a direct result of that.

posted by Autumn to Law & Government (13 answers total)

IANAL, but my layman's instinct is 'no, this would not be legal'. I was going to raise the question of whether this would qualify as 'cruel and unusual punishment', but after a quick bit of research discovered that instead of being a general sentiment in law or warfare (as I thought), it is in fact explicitly addressed in the constitution, and further that this particular 'tactic', as it were, is expressly prohibited by a constitutional amendment.

In Wilkerson v. Utah, 99 U.S. 130 (1878), the Supreme Court commented that drawing and quartering, public dissection, burning alive, or disembowelment constituted cruel and unusual punishment regardless of the crime.

I doubt the officers involved in the siege spent much time consulting regulations, but the evasive nature of the public statements concerning whether or not the fire was started intentionally, coupled with the trigger-happiness displayed prior to Dorner's death, strongly imply, at least to me, that this is a prohibited practice. After all, if Dorner had died in an exchange of gunfire, the LAPD would not claim they were aiming for the cabin and accidentally hit him in the process.
posted by jaffacakerhubarb at 8:55 AM on March 1, 2013 [1 favorite]

Lethal force can be reasonable and necessary under the right circumstances but even then only reasonable lethal force is allowed. There's not a threshold where anything goes. Cops are never allowed to torture people. Setting a remote cabin with people inside on fire on purpose would have been excessive particularly because they did have other options such as the ones they used to deal with that situation like attempting to use tear gas or simply waiting at a safe distance until the suspect came out.
posted by steinwald at 8:56 AM on March 1, 2013

I have some experience with plaintiff-side federal police misconduct litigation. I don't know anything about this case except what is on wikipedia though.
posted by steinwald at 8:58 AM on March 1, 2013

I'm sure this is a gray area like anything else, but I don't know if you could sell this as a punishment/penalty/sentence. It was a homicide committed while attempting to arrest someone. Some relevant CA code for that is at sections 196 and 197, here. It's just a blanket of when "homicide" is justifiable and doesn't get more specific as to the nature of the homicide.
posted by ftm at 8:59 AM on March 1, 2013

There was an article on slate (or salon, or huffpo) on this that I can't find at the moment:

Basically, no, it's not allowed, but 1) tear gas canisters generate an enormous amount of heat* and 2) there's basically no way to prove it wasn't "accidental", so when faced with something like the Dorner situation where multiple cops have been killed already, the police would tend to look the other way and just settle if Dorner's mom came back later on and sued.

*this is a feature, not a bug, that prevents rioters from throwing tear gas canisters back at cops
posted by Oktober at 9:07 AM on March 1, 2013

I believe this is a Due Process (5th, 6th, 14th Amendments), not a Cruel & Unusual Punishment one (8th Amendment). The police do not have the authority to convict someone, which is where punishment comes in. The police could have just sat back and waited for him to starve, since he wouldn't have been going anywhere while surrounded.
posted by rhizome at 9:16 AM on March 1, 2013 [2 favorites]

All police departments have policies that govern the use of deadly force, and all officers are trained in them. This manual contains the LAPD policy, just search for deadly force. You might also be interested in Graham v Connor which states that use of force must be objectively reasonable. Generally, officers are not limited to just the use of a firearm if deadly force is justified. Also, tear gas canisters and flash bangs may cause fires.
posted by tr0ubley at 9:26 AM on March 1, 2013

Under some (very different) circumstances courts have found it reasonable and necessary for police to intentionally burn a building full of people during a standoff. Check out this case. Here the police first attempted several times to use tear gas without success, then used an explosive device to get into the bunker with the reasonable belief that they would be able to control the fire and use the hole to introduce tear gas with a very low risk of killing the people inside. They failed and several people died, but that was not the plan. There's a good discussion in there about how the fourth amendment applies to this situation.
Just bombing the place without looking at any alternatives with the intent to kill everybody would have been unreasonable and thus unconstitutional.
posted by steinwald at 9:41 AM on March 1, 2013

In general, lethal force can only be used , by police or non police, to stop (not kill) someone who is a clear and present threat to others life or a life threatening crime (such as rape and kidnapping). You are also not allowed to kill someone after the fact of a crime that would otherwise justify lethal force since the present danger has gone away. The stop thing is an important distinction. The level of force used to prevent another's deadly actions or criminal act MAY result in their death (and be justified) but it IS not legal to make that the objective of the use of lethal force. It must pass the reasonable person test, meaning that any reasonable person when confronting the same situation would conclude that such a threat existed (whether or not it actually existing-like the cases where cops have shot someone who was holding a toy gun that looked a lot like a real gun). This is the basis of such things as castle doctrine (meaning that a legal occupant responding to someone forcefully entering their home can use lethal force without first either retreating or ascertaining the assailants motive) and justifiable homicide. It is also clear that how the police responded to the Dorner case (not just to the end game at big bear) is pretty much outside the law. I think justifying the fire as a use of lethal force is not legal since fire is indiscriminate, as it could also be reasonably expected to kill anyone else in the house as well as Dorner, and result in their death, not just stopping the threat or criminal act. Also it is NOT up to the police to decide whether or not someone is going to taken alive in theory, in practice the reality is more fluid.

This is also way it usually up to the defendant in self defense cases to PROVE it was justified and not be presumed innocent until proven guilty.
posted by bartonlong at 9:45 AM on March 1, 2013 [3 favorites]

What's mostly missing from the conspiracy theory accounts of the Dorner case is that they would have accepted his surrender.

They offered him repeated chances and continued to try to coax him out of the cabin up until the end. Even after it was (accidentally, by all reasonable sources) set on fire, he could have come out and surrendered. Instead he chose to take his own life. I'm sure there are claims the police would have shot him anyway if he had laid down his arms and come out, but there is absolutely no evidence of that.

It seems like there has been a lot of cross-pollination between anger over the drone war and the actions of the US Military, and the Dorner case. The US Federal Government certainly engages in intentional assassination of people who might wish to surrender (notably Osama bin Laden), but I know of no police department that does or ever has.
posted by drjimmy11 at 10:14 AM on March 1, 2013 [2 favorites]

bartonlong: It is also clear that how the police responded to the Dorner case (not just to the end game at big bear) is pretty much outside the law.

Do you have court decisions to back this "clear" fact up?
posted by IAmBroom at 12:23 PM on March 1, 2013 [1 favorite]

Do you have court decisions to back this "clear" fact up?

not off the top of my head, but I think you would have a hard time passing the reasonable person test to shoot up (especially to the level they did) the two pickups that didn't even match the description of Dorner's driven by people who didn't match Dorner's description. Do you really think that was OK or a justified use of lethal force? Them shooting up the cabin/the gunfight around the cabin is probably justifiable knowing Dorner's history and stated objectives. Burning it down deliberately (as was stated in the question) is probably also not justifiable (but maybe understandable) and I attempted to walk me through the reasoning based on what I know about Legal use of lethal force (which is built on knowledge of laws and how they have been used in self defense cases). Police DO NOT get special powers to just go shooting up things they find suspicious or have a gut feel about the persons motive or even the (legal) ability to shoot on sight (in practice this is more of a grey area in extreme cases like Dorner's). That is pretty well established and I don't think you will find any court cases supporting that view.
posted by bartonlong at 1:36 PM on March 1, 2013 [1 favorite]

It wasn't the LAPD who set the cabin on fire with tear gas, it was the San Bernardino Sheriff.

Over the past few decades, law enforcement has burned, bombed, run over, beaten, shocked, shot, and suffocated suspects they thought posed a danger. Sometimes it was justified, sometimes not. Sometimes a court decided this, sometimes a police commission, sometimes no one at all.

If the SB Sheriff set the cabin on fire with torches rather than tear gas, they'd probably have to explain -- to someone -- why it was necessary. Only then would you'd know if it was legal or not.

Then again, it's been ruled that Dorner shot himself. So they could have dropped napalm on the place, and there still probably wouldn't have been an investigation.
posted by turducken at 12:06 AM on March 2, 2013