Can a Police Officer be Fired for NOT Shooting?

On May 11, 2017, the New York Times reported about a unique set of circumstances that arose from an officer-involved shooting that occurred in 2016 in Weirton, West Virginia.  As the New York Times reported, a former Weirton police officer sued the City claiming that he was fired after a man with an unloaded gun was killed by the police.  The twist in this unique case is that the former Weirton officer claims that he was fired for not shooting the suspect who was armed with an unloaded gun.

Multiple media outlets, including the Pittsburgh Post-Gazette, provided details about the May 6, 2016, encounter between Weirton police officers and an African-American man named Ronald Williams, Jr. that resulted in Mr. Williams’ death after Weirton officers responded to a domestic violence call. In a lawsuit filed by former Weirton officer Stephen Mader, who is represented by the ACLU of West Virginia, Mader claimed that he was wrongfully terminated by the City of Weirton. According to the lawsuit, Mader observed Williams holding a gun upon arrival at the scene. Mader claims that he could have shot Mr. Williams but chose not to do so because Mr. Williams was not aggressive and was trying to commit suicide-by-cop, including telling Mader to “just shoot me.” Minutes later, additional officers arrived on the scene and at least one officer deemed it necessary to shoot Mr. Williams. The lawsuit alleged that Mr. Williams’ gun was unloaded. Less than one month after the shooting, Mader, who was in his first year as a police officer, was fired by the Weirton Police Department due to his “apparent difficulties in critical incident reasoning.”

According to the Washington Post’s comprehensive database on police shootings, Mr. Williams’ death was one of 963 fatal officer-involved shootings in the United States in 2016. My research failed to uncover any instances following the other 962 fatal officer-involved shootings in which an officer who did not shoot later alleged that he was fired by his employer for the failure to do so. Although this situation led to a unique outcome, there are three themes present here that can be applied to officer-involved shootings broadly.

First, law enforcement policies and the governing case law both focus on process, not outcomes, when evaluating officer-involved shootings; but the general public tends to focus on the outcome and uses it to color their view of the process. The applicable Fourth Amendment case law requires a jury to analyze the information available to a police officer at the time of his actions and, without applying 20/20 hindsight, determine whether the officer’s actions were objectively reasonable. If, as described in media accounts, the shooting officers saw that Ronald Williams, Jr. was armed with a gun, those officers would not possess information to conclude that the gun was unloaded. Using the subsequently-discoverable information that the gun was unloaded to evaluate the officers’ decision to shoot Mr. Williams is the type of second-guessing and Monday-morning quarterbacking prohibited by the governing Fourth Amendment case law. Nonetheless, the media accounts view the underlying shooting with skepticism because of the conclusory fact that Mr. Williams’ gun was unloaded. The media perspective is consistent with my experience that jurors and members of the public frequently – and improperly – look at the outcome – was a suspect armed? – and then work backwards in determining whether an officer’s decision to shoot was reasonable.

Second, the concept of suicide-by-cop is an important one, but contemporaneous awareness of the issue will not necessarily prevent an officer-involved shooting. Law enforcement agencies across the country have placed an increased emphasis on ensuring that officers are aware of how to best interact with individuals with suspected mental health issues. This emphasis applies to scenarios where officers are interacting with a suspect whom they believe to be suicidal. While the awareness of a suspect’s condition is crucial, knowing that a suspect is suicidal or may be attempting to commit suicide-by-cop by inducing the officers into shooting may not necessarily eliminate the officer’s need to shoot the suspect.

Third, race continues to be an important issue in officer-involved shootings, particularly in cases where the decedent is African-American. Using data from the Washington Post for the 900 fatal officer-involved shootings in 2016 in which the decedent’s race was reported, 26% of those shootings resulted in the death of an African-American. There are two disparate ways of applying this data. On the one hand, this data point demonstrates that the vast majority of officer-involved shootings in the United States do not involve African-Americans. The notion, widely-held in some corners, that police officers are indiscriminately killing African-Americans is not supported by the data. On the other hand, African-Americans are killed in shootings with the police at a rate that is roughly double their share of the population. Even if one were to interpret those numbers in the most favorable fashion for the police and assume that neither overt bias nor implicit bias played a role in any of the 263 fatal police shootings of African-Americans in 2016, the data provides a clear explanation for why African-American activists have been at the forefront of issues concerning the use of force by police. If, for example, there were a 10% reduction in police shootings nationwide, African-Americans would be the primary beneficiaries, on a per capita basis, of such a reduction.

Returning to the issue that started this article, is it possible for an officer to be fired for his decision to not shoot, particularly if we assume that the suspect’s gun was unloaded? The employee protections for police officers vary on a state-by-state basis, so I cannot ascertain how the situation in Weirton, West Virginia will resolve. But I can say that if a similar situation were to occur in California, nothing in the Peace Officer Bill of Rights Act (POBRA) prohibits an employing agency from taking an adverse action against an employee who declines to use force against a suspect. Therefore, if this unique set of facts were replicated in California, it would be possible for a police officer to be disciplined or fired for failing to shoot in a situation in which it was later determined that the suspect’s gun was unloaded.

If you have any comments about this unique situation, please post them below.

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