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Death by Indifference:
A New Understanding of Suspect Actions
Leading to Deadly Force

Every reasonable police use of deadly force is based on objective facts that led the officer to believe that his life or another’s was in imminent danger of death or serious bodily injury. Each of these facts must be explained and articulated by the officer in the post-shooting aftermath. It is a very thorough process, one in which every aspect of the officer’s responses to the offender’s actions will be minutely examined and judged by individual jurors. Both sides in every civil suit will have their theories of why the shooting took place. The officer’s defense team must present to the jury a cogent, comprehensive, and coordinated justification for the shooting.

This process is often simplified when the shooting involves an armed suspect who fired either prior to or simultaneously with the officer. Offender motives involving intense anger, or an attempt to kill the officer in order to escape detection or arrest are easy to accept—these justifications seem "normal cops and robbers stuff." Jurors can easily understand why the officer was forced to shoot in circumstances such as these: this was a "bad guy."

This perception changes when the suspect’s actions are not rational, and the officer is forced to employ deadly force against a person who does something threatening after being held at gunpoint for some period of time—sometimes only seconds. These are often slowly developing incidents that suddenly change. The officer has been giving the suspect orders to comply, to drop the weapon, or to show his hands. The subject often partially complies, but then resumes his or her non-compliant behavior. There is no sense of "control of the situation" on the officer’s part, although the officer may have been getting small acts of compliance along the way.

Suddenly, the officer realizes this person has just made a decision. The officer observes some change in the suspect’s facial features. The offender abruptly moves in a manner that is reasonably interpreted by the officer as a threat. Often the officer will say something to the effect of, "No. Please don’t!" just before he is forced to fire in direct response to the suspect’s actions.

Officers are typically angry after this type of shooting. They ask, "Why did he make me do that?" Their anger will mix with dismay at the apparent senselessness of the suspect’s actions. This shooting seems so unnecessary to the officer because all the subject had to do was comply in the face of certain force. Now the "Why’s" and "If-only’s" begin: "If only he would have listened"…"Why did he do it?"…"If only he would have complied"…"Why…?"…"If only…"

Many in law enforcement jump to an explanation of this individual’s actions as "suicide by cop." After all, the suspect made a threatening move while staring down the barrel of the gun, almost as if inviting the officer to shoot him. Suicide by cop is a valid and well-documented theory. Many police shootings involve individuals who wish to commit suicide by committing a felonious assault and forcing officers to use deadly force. At least 10%, and perhaps up to 40% of all police shootings are situations where suspects bent on suicide force officers to shoot them.

There are many cultural and religious taboos against suicide in our society. Many jurors are very disturbed by its concept, and are reluctant to believe the suspect was suicidal without the concrete proof provided by a suicide note or a witness/family member’s testimony of prior suicidal intent. While the individual shot by police may have committed a suicidal act, they may not have been suicidal. In fact, the offender’s physical survival probably did not enter his thought processes at the moment he made his fateful decision. Instead, this person was, momentarily, indifferent to the consequences of his threatening behavior. Rather than suicide by cop, he committed "death by indifference."

Police civil defense attorney Bruce D. Praet and I have worked together for many years on the civil defense of officers involved in wrongful death litigation. After a number of cases in which the suspect behaved in a difficult to understand manner, we began discussing the characteristics we observed. Some of the commonalties we discovered in these cases are:

• Virtually all involve some level of alcohol intoxication and/or being under the influence of some drug, often methamphetamine, and/or mental illness.
• All involve emotionally charged situations. The individual has just found out he has a life-threatening illness, has just had a fight with his/her spouse, has just led officers on a pursuit, or is simply emotionally out of control or raging.
• Many involve persons with no criminal history, or just minor scrapes with the law.
• All involve some form of violence, threatened violence, and/or the presence of a weapon that results in the police becoming involved.
• All involve increasing levels of frustration on the part of the suspect who is being lawfully ordered to do something he or she doesn’t want to do or thinks is "stupid."
• All involve the person who is being held at gunpoint clearly making a decision that will logically result in his or her being shot.

The concept of "death by indifference," coined by Mr. Praet, is an incredibly accurate term. Who among us, at some point in life, have not, in a heated moment of frustration and disregard for consequences, just thought, "Screw it," and then said or done something we wouldn’t have in calmer situations? Who hasn’t asked when later hit with the consequences of a thoughtless act, "What was I thinking?"

In the instance of an officer holding the person at gunpoint, "death by indifference" is characterized as being unconcerned at this moment for what will logically result. The officer pointing the firearm is typically telling the subject exactly how not to be shot ("Drop the gun!"/"Show me your hands"/"Don’t move!"). Due to the alcohol, drugs, or mental condition (or combinations of the three) and his emotional state of anger, rage, or frustration, the thought of being shot is suddenly irrelevant, at least momentarily, to the suspect. The firearm pointing at him, often from relatively close distances, simply ceases to be a consideration, and he moves in the threatening manner that the display of the firearm and the officer’s orders are trying to prevent. These individuals are not suicidal. Rather, their indifference to the logical consequences of their threatening actions results in what appears in hindsight as a suicidal act.

The following is a typical scenario: Officers get a report of a 25-year old woman armed with a knife. She is holding her family hostage. She is somewhat delusional, and is reported to have been conversing with her deceased grandmother. She has a history of methamphetamine abuse, but no arrests. An adult family member outside the residence states she was drinking heavily all night, and began shrieking at 0400 hours this morning. When family members investigated, they were ordered to sit in the front room. Told not to move, the suspect flails the knife, screaming unintelligibly while charging the family member whenever either speaks or moves. While as yet unharmed, both are frightened into submission. There is a heavy security screen door that is closed and probably locked. The suspect is leaning against it and is alternately crying, talking to her dead grandmother, and screaming as officers arrive.

Eventually four officers are on-scene. The OIC, after speaking briefly to the family member outside, walks up to the screen door with his handgun in-hand, held behind his leg. Though his vision is partially blocked by the heavy screen door, he can see her grandfather and young adult sister in the living room. Both are quiet and submissive. He witnesses the suspect threatening them, pointing the knife and screaming incoherently. He begins to speak reassuringly, while at the same time, he moves slowly forward until he is only six feet from the door. He can now see the suspect and her large hunting knife clearly.

The suspect challenges him to come inside. She also cries hysterically. She taunts him derisively. She screams and rants. Then the cycle continues anew. The OIC maintains his half of the dialogue, asking her how he can help and telling her to drop the knife and come outside. This goes on for twelve minutes. Meanwhile, the County’s SWAT team has been called out, with an ETA of 90 minutes.

For the last two minutes, her mental state has been deteriorating rapidly. She is making more and more threats, and getting even more emotional. It is difficult for the officer to hold her attention as she focuses on her grandfather, letting loose stream after stream of invectives, all punctuated with the knife pointing at him. She begins stabbing the door behind her over and over, shouting at her grandfather, "Why did you do that to me?" The OIC becomes extremely concerned for the safety of the family members inside. In a loud voice, he says, "Look at me…look at me. I think your family would be better off in a back room behind a locked door." Seeing no movement inside, he repeats it more emphatically. The old man finally "gets it" and getting up, moves with the young toward the back of the house. The officer cannot hear whether or not a door closes.

The suspect blinks at the officer with a look of disbelief. She turns her head and sees her family disappearing into the rear of the house. For at least ten seconds, she alternately looks at the officer, and then at the opening of the hallway where her family retreated. The OIC is talking to her, trying to get her to focus on him. Abruptly, her look changes from one of disbelief to anger. She spits out the words, "I’m gonna get ’em!"

The officer punches out his handgun, and orders, "Don’t move! Don’t move or I’ll shoot. Now drop the knife." She looks at him one last time for several very long seconds. He sees something in her face, and is instantly filled with dread as he says, "Please don’t!" She abruptly moves. "No. Stop!" the officer shouts. The officer believes the family members are in imminent danger, and fires two rounds at her from six feet away. She moved so suddenly that when the officer finally fires, he puts two rounds into the couch behind where she had just been standing. He steps to his right, reacquires her through the heavy screen as she is moving quickly to the back of the house. She looks over her right shoulder, slowing a bit, then moves abruptly again. He shouts, "Stop or I’ll shoot!" Seeing no compliance, he fires four rounds, hitting her in the back three times. She expires at the scene.

This is a typical "death by indifference" shooting. This subject was not suicidal, although her action in the face of a police officer pointing a handgun and warning her that he would shoot seems suicidal. This individual, at the moment she made her fateful decision, was indifferent to the consequences of her actions. The officer was telling her how to act to avoid being harmed. Instead, she acted without concern regarding what would happen if she disobeyed the officer. This suspect’s actions certainly qualify as death by indifference.

When investigating, articulating the circumstances, and defending officers involved in the shooting of a suspect, it is vital to be absolutely clear and as accurate as possible in all explanations of the officer’s and the suspect’s actions. The typical juror will often resent any legitimate defense implication of suicide without the external corroboration of a note or statements to that effect. It is vital we provide explanations that give the juror the best possible explanation of why the shooting took place.

In a growing number of cases, we have become aware of a class of shootings that does not fit neatly into traditional categories of anger, escape, or even suicide by cop. These strange but increasingly common cases involve individuals who, for the most part, have no criminal background, but have acted out in some violent manner that required officers to respond. Typically they are armed, refuse to show their hands, or are in a motor vehicle of some kind. In all cases, the individual refuses to comply with simple orders by officers who are clearly pointing firearms at them. All involve some type of armed standoff, often at conversational distances, or, at least, easy yelling distance. Always, some level of alcohol, drug, or mental illness, and sometimes all three, is involved. And, always, this person has some emotionally charged issue that is unresolved and remains unabated in the presence of officers.

At some point, these individuals make a decision in the face of probable death and certain injury. They are looking down the barrel of a gun (or many) and seem to come to some conclusion that says, "At this point, this moment, I don’t care what happens." They then abruptly move, drive, or fling themselves in some manner that causes the officer to reasonably believe that he (or another) is imminently threatened with death or serious physical injury. The result is a shooting brought on by the offender’s actions.

In explaining why someone might do something so reckless as to defy belief, we need a concept that accurately describes what officers are facing. When explaining why a person who was not "suicidal" did something that was plainly suicidal, we can describe what we now know is "death by indifference." Because, at the point the suspect did what he did, he was indifferent to the consequences. That person just didn’t care.

Now we can tell the officer, "We know you had to shoot him. This is why he made you do it." Juries, too.