Officer Allen was employed by the Atlanta Police Department and was assigned an area where and complaints had been filed by citizens about drug use and prostitution. Officer Allen and two fellow officers were patrolling the area when they encountered a parked vehicle occupied by two people. The officers identified themselves to the occupants. At that time Officer Allen saw that the steering column was broken. Officer Allen and the other officers ordered the occupants to get out of the car. The occupants ignored the officers' commands.
Suddenly the driver started the car and drove towards Officer Allen. Officer Allen fired one shot at the driver missing him but grazing the passenger. The car was subsequently stopped. A NCIC check revealed that the car was stolen. Searching the car the officers found cocaine.
The shooting investigation determined that the occupant was an innocent bystander. Therefore, based on the Atlanta Police Department employee work rule 6.09 (e), which provides: "A firearm shall not be discharged if the lives of innocent persons may be in danger" Officer Allen was suspended for three days. Officer Allen appealed the decision to the Atlanta Civil Service Board which upheld the decision of the Atlanta Police Department. Officer Allen then filed a petition for writ of certiorari in Fulton County Superior Court. The Court refused to hear the case.
Officer Allen appealed to the Georgia Court of Appeals and certiorari was granted. Officer Allen contended that the rule was not enforceable because of conflict with the Georgia Code 16-3-21. The statue provided that:
A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other's imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person [***3] or to prevent the commission of a forcible felony. O.C.G.A. § 16-3-21 (a).
That statute further mandates:
Any rule, regulation, or policy of any agency of the state or any ordinance, resolution, rule, regulation, or policy of any county, municipality, or other political subdivision of the state which is in conflict with this Code section shall be null, void, and of no force and effect. O.C.G.A. § 16-3-21 (c).
Additionally, the state's arrest statute provides that police officers
may use deadly force to apprehend a suspected felon only when the officer reasonably believes that the suspect possesses a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; when the officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others; or when there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm. O.C.G.A. § 17-4-20 (b).
The arrest statute furthers states:
No law enforcement agency of this state or of any political subdivision of this state shall adopt or promulgate any rule, regulation, or policy which prohibits a peace officer from using that degree of force to apprehend a suspected felon which is allowed by the statutory and case law of this state. O.C.G.A. § 17-4-20 (d).
Officer Allen argument was based on the Georgia statue of self defense and arrest statues. The rule contradicted the law. The rule did not allow for a judgment call for the officer. The city's position was that if there were innocent bystanders the officer should not discharge a firearm even in defense.
The court again turned to state law. It stated the mere presence of a bystander was not an obstacle to the use of deadly force. Also, in review policy of the Atlanta Police Department revealed that the rule was contrary to the firearms policy.
It is the primary intention of this policy to ensure the safety of both the public and the employees of this department. Therefore, while it may become necessary for an employee to discharge a firearm, it is required that the employee first make every effort to avoid such drastic action. In all cases, only the given amount of force shall be used which is consistent with the accomplishment of a mission. The employee shall use caution and act in a calm and deliberate manner when he/she finds the use of a firearm necessary. No employee will be criticized if he/she chooses not to discharge a firearm if the discharge might threaten the life or safety of another or if the discharge might not be clearly warranted by this policy, state law, or reasonable judgment. Nor will criticism be made of an employee who when faced with a situation which threatened life or serious physical injury, discharged a firearm in self defense or in the defense of another. Employees are reminded that use of deadly force cannot be taken lightly and that the employee's actions in its use must not only be legally warranted and defensible but also within accepted moral and social codes and consistent with rational and human social control in a democracy.
The policy was in line with the state law and allowed for the officer's discretion in the use of deadly force. Furthermore, it went on to say that the officer may be forced to make the decision. Therefore, the Policy and Procedure of the Atlanta Police Department and Georgia State law conflicted with rule 6.09. The court ruled that the suspension of Officer Allen was based upon a violation of that rule and could not stand.
Problems such as this could arise in most any police department. What we must do is constantly oversee, review, revamp, and stay up to date. We cannot allow our policies to age - unlike old police officers such as me. Keep them up to date and not in conflict with other legal standards.
