REUTERS

A subtle, but crucial policy tweak recognizes the importance of officer behavior pre-shooting. 

By making a slight change to its policy on officers who fire their weapons, the Los Angeles Police Commission, which acts as a board of directors for the Los Angeles Police Department, took a big step this month toward improving how LAPD officers deal with the mentally ill. 

Since the 1970s, the commission's review process for officer-involved shootings—any incident in which an officer fires his or her weapon—has broken events surrounding such shootings into separate moments in time, and then determined the appropriateness and legality of each moment in isolation. But that approach has historically enabled the commission to occasionally clear officers, even when the officers' behavior may have sparked a situation where deadly force was needed in the first place. The L.A. Times' Joel Rubin reports that this is essentially what happened with the 2011 shooting of Kamisha Davidson. 

Now, under a newly implemented policy, the commission will be required to consider what an officer did before he or she decided to shoot. That might not sound like much of a tweak, but it has far-reaching ramifications for how California police departments train their officers. 

The commission's decision is a response to an August 2013 California Supreme Court ruling involving the 2006 death-by-cop of a suicidal man in San Diego. That year, the San Diego County Sheriff's Department sent two deputies to the home of Shane Hayes after his neighbors called 911 reporting screams. Hayes' girlfriend met the officers at the door and told them Hayes had tried to kill himself by inhaling exhaust fumes from his car. She also told the officers there were no guns in the house. They weren't told that Hayes was drunk, or that he'd previously been hospitalized after an earlier suicide attempt. The officers approached Hayes in his kitchen and told him to put his hands up and turn around. He did so, holding a knife. When Hayes threateningly approached the officers, they shot him dead. 

Hayes' daughter sued San Diego County and the two deputies for negligence, and a federal district court ruled against her, based on the "agreement of all eyewitnesses that, at the time of the shooting, Shane was walking toward the deputies while holding a large knife in a threatening manner." Nothing unusual about that. But the plaintiff appealed, and in August 2013, the California Supreme Court took it up [PDF], ostensibly to answer a question posed to it by the 9th Circuit Court of Appeals: "[w]hether under California negligence law, sheriff's deputies owe a duty of care to a suicidal person when preparing, approaching, and performing a welfare check on him.

The California Supreme Court justices didn't like this question. To them, it suggested the existence of a specific duty—one to a suicidal person—that has never been established under California negligence law. So the court decided to look at the situation more broadly, and determine “[w]hether under California negligence law, liability can arise from tactical conduct and decisions employed by law enforcement preceding the use of deadly force.”  

Here's how the court answered that question: 

We perceive no sound reason to divide plaintiff's cause of action artificially into a series of decisional moments (the two deputies' decision not to call for a psychiatric expert before entering Shane's house, their decision to enter the house, their decision to speak to Shane, their decision to use deadly force in response to Shane's apparently threatening behavior toward them with a large knife, etc.), and then to permit plaintiff to litigate each decision in isolation, when each is part of a continuum of circumstances surrounding a single use of deadly force by the deputies. Any other approach would be both inefficient and confusing, and would conflict with our past decisions on negligence.

To circle back: Creating an artificial division of "decisional" moments is exactly how the L.A. Police Commission has historically judged officer-involved shootings. The ruling was big, and the L.A. Police Commission clearly thinks its response is equally big. Commissioner Robert M. Saltzman told the L.A. Times' that the new review rule marks "one of the most significant policy decisions we've made in my seven years on the commission." 

The change could have an immediate impact on how police officers deal with the mentally ill, as the August ruling opens the door even wider for negligence lawsuits in the event mentally ill Californians are injured or killed by police departments that have poorly defined mental illness protocols. As we've discussed here before, asking police officers to deal with someone who's schizophrenic, suicidal, autistic or otherwise ill or disabled, can often result in tragedy. While the issue gets more attention every time something goes wrong, police departments are still wildly inconsistent about training and deploying Crisis Intervention Teams. The L.A. Police Commission's policy change could signal an important shift in thinking. Then again, in the world of law enforcement, lawsuits are considered the cost of doing business. 

Top image: A member of the LAPD inspects a gun during a gun buy-back event. REUTERS/Kevork Djansezian

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