What is the optimum policy regarding the use of deadly force (firing weapon) by a peace officer under sec. 9.51(c), (g) of the Penal Code? Should all such instances be reviewed by the grand jury as potential criminal conduct, with the officer called to explain his conduct? Should the prosecutor alone decide whether there is a question about the justification? What is the correct understanding of sec. 9.32(a)(2) in these circumstances (since an officer attempting to make an arrest is rarely in a retreating mode)? This seems like a real "hot potato" regardless of how it is handled. In the two instances I have in mind the suspects were unarmed but in vehicles that were being driven in the direction of the officers in a threatening manner. If the officer says he was careful not to aim at the suspect is that determinative in itself?

Martin:

I have personal experience in this area as my husband was required to use deadly force in a domestic violence situation in 1996.

In this case: the Grand Jury reviewed the case and no-billed; the FBI investigated and ruled the force used was justified (not excessive); and a federal jury found in favor of the defendants (my husband and the County)in the 1983 action the decedent's family filed.

I will gladly discuss this with you or anyone else from TDCAA by phone or email, but do not care to post all the details or my opinions for the general public. Call me at (325) 392-2025 or email me at LKE112da@aol.com.

In my opinion, a District Attorney should have a grand jury review every case involving the use of deadly force by an officer. Regardless whether the DA thinks the use of force was justified or not, there are many good consequences of having the grand jury conduct the review.

One of the best reasons is that the community remains confident that an independent body is watching over the use of deadly force and providing an ongoing review.

I tend to agree with John. I run any fatality through the grand jury. However, I might not seek a no bill, but allow the grand jury decide on its own without recommendation, thus indicating that criminal action wasn't appropriate. The grand jury might decide to take no action at all. Regardless, I think there is tremendous value in having twelve citizens review a fatality, not just for the press, but for the officer's peace of mind in knowing that the community agreed that his (or her) reactions in a fleeting moment's decision were well founded.

John, do you require the officer to appear as a witness? Or have any fellow officers on scene testify? A Texas Ranger investigated one of my "cases". Is that the only one who should appear before the Grand Jury? Still curious about an officer's duty to retreat,and what constitutes use of force "against another" when you are only firing in the general direction with no intent to injure. Do you try to give the grand jury some guidance on those issues? Suppose the Chief or Sheriff is satisfied without a grand jury "investigation", any exceptions to your rule? Dan, thankfully no fatality or even close involved in my situation.

Martin, we may have to start charging you by the question.

Always have an independent investigator (Texas Rangers are the best). The officer who used deadly force generally should testify, if for no other reason than to articulate the justification for deadly force. What difference does it make what opinion the Chief/Sherrif has about the use of deadly force as to whether the case is presented to a grand jury?

As for the other questions, I don't do hypotheticals on the use of deadly force.

As long as the charge is reasonable in relation to the value of the advice, I will gladly see that it is promptly paid. For the time being accept my thanks alone.

Check out PC 9.51 (e). If the peace officer's actions are pursuant to (c), or any other person's actions are pursuant to (d), there is no duty to retreat. Hope this helps resolve that part of your question!

Joe, while there is clearly no duty to retreat if the officer is acting under 9.51(c), it occurs to me that the officer might also seek to justify his conduct under 9.32 (although it is not clear to me what 9.51(g) says about that). If so, is the "actor's situation" language sufficient to pretty well eliminate any argument about retreat during the course of an attempted arrest? That was my train of thought.

I'm not sure why a peace officer, acting in his official capacity, would ever want to justify his conduct under 9.32. Considering Art.6.05 and 6.06 of the Code of Criminal Procedure, it would seem that an officer acting in his official capacity would likely be in the process of making an arrest for at least an Agg Assault if he is using deadly force to stop a car coming at him or anyone else in a threatening manner. It's obviously a split-second decision in the field. If deadly force is the only way for the officer to prevent an injury, then it would be justified. Besides, the CCP says it is his duty to intervene.

It just seems to me that 9.32 is for persons who are not peace officers or acting in the peace officer's presence and 9.51 is for peace officers and those acting in the officer's presence and at his direction.

I agree with John B. about the independent investigation and review by the GJ.

I probably should have agreed with him about not doing hypotheticals!