New York City Police Training on Use of Deadly Force

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CITY OF NL;W YORK 
POLICE ACADEMY 

FIREARMS SECTION

January, 1973

LEGAL AND MORAL USE OF DEADLY PHYSICAL FORCE
»

The prime duty of the Police Academy, Firearms

Section is. to instruct members of the service in the safe,

proficient and tactical use of firearms. This, however,

is only one,aspect of an acceptable, desirable and total

police fire'arms training program. The teaching of tiie 
»

jurisdictional law as related to the use of deadly physical 

fdrce and.Department policy as well as the instilling of 

a-sense of moral responsibility and judgement into each
a

student is of equal significance.

.PROGRAM NOTES

LAW

The law, be it primitive, tribal or that of 

today's complicated society, is conceived from 

the habits' and beliefs of individuals and the 

customs values of groups of the society. Con­

sequently ffuch law, upon which society judges *
each member's conduct, is accepted by the 

majority o^ the group. Acts are declared il­

legal because society considers them evil.



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PROGEIAM NOTES

However, the grade of evilnesa of a crime, and 

its allotted punishment, may change as the 

customs of society change. For example, 

approximately five hundred (500) years ago 

there wore 160 acts punishable by death in 

England’. One could even be hanged, transported
I

or indentured for picking pockets. In our own
«  • IMassachusetts Bay colony, more than one hundred ^

.. (100) people were executed for the crime of ;• •, I
,fornication (not to be misconstrued with rape), !*
Daring the American frontier period it was a j

ccxnmon practice to shoot or hang horse thieves.
I

The horse, at that time, was vital to the live- ^
\

• I

lihood and, in many instances, the lives of the j 
settlers. But, as people became more civilized 

and less .dependent upon the horse or other 

property "for individual survival, less punish­

ment was- meted out for anti-social acts which 

did not ’endanger the physical well being of 

the member(s) of the community. Presently,
4

.even th’e^most conservative jurist would not 

justify the use of deadly physical force for 

the stealing of a horse or an automobile or



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PROGRAM NOTES

ev*4r> more.serious crimes.

.Currently, there are many more restrictions 

imposed upon the legal use of deadly force 

than in past years. These are premised on 

the generally accepted opinion that a police 

officer is armed to protect the lives of him- 

• self or others against persons who are endan-
t

gering them. The deadly force used by police

.is not intended to be used offensively, or as

a crutch because of a lack of knowledge of the 
*

law or ability to perform the job, or ag an 

apprehension tool, even though there may bo 

legal justification to do so. The allowable 

force for the prevention of the flight of a 

felon has been greatly modified by state 

statutory law. If a law enforcement officer 

shoots an unarmed fleeing felon, a considerable 

negative jcoaction is created in the conmmnity.

This generally accepted opinion is the new
' .»

ethical standard which a police officer must 

abide by.*-' It, therefore, is extremely impor­

tant that each police officer have a thorough



(^’ 1

knowledge of this section of the New York State 

Penal Law, its application and limitations, 

which we will now discuss.

PROGRAM ____________________  . __________________________

In order to facilitate comprehension of the

New York State Penal Law as described in

Section 35,'-it is necessary to know the

following definitions and principles:

Deadly Phye^cal Force - physical force which,
•»

«

. under the circum-
■ • • I

»stances in which *
*

it is used, is
Ireadily capable of
i
I

causing death or |
iother serious physi- ;
I

cal injury.
!

physical injury which ^
I

creates a substantial

NOTES

Serious Physical Injury-

risk of death, or 

which causes death 

or serious and pro­

tracted disfigurement*

protracted impairment ;



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PROGRAM NOTES

Physical Injury

Physical Force

Premises

of health or pro­

tracted loss or im­

pairment of the 

function of any 

bodily organ, 

the impairment of 

physical condition 

or substantial pain, 

although there is 

no formal definition 

for this term, it 

can be described as 

that amount of force 

which is not deadly 

physical force, in 

other words, that 

amount of force 

which is not cap­

able of causing 

death or other 

serious physical 

injury.

includes the term



(t-)

PROGRAM NOTES

Building-

Dwelling ■’

"building" and any 

real property.

In addition to its 

ordinary meaning 

includes any struc­

ture, vehicle or 

watercraft used for 

overnight lodging of 

persons, or used by 

persons for carrying 

on business therein, 

or an enclosed motor 

trucK trailer. Where 

a building consists 

of two (2) or more 

units separately 

secured or occupied, 

each unit shall be 

deemed both a sep­

arate building in 

itself and a part of 

the main building, 

a building which is



PROGRAI^i NOTES

Licensed or* Privileged -

Deadly Weapons

usually occupied by 

a person lodging 

therein at night, 

persons permitted in 

buildings or upon 

other premises to 

include, but not 

limited to , peace 

officers acting in j

the performance of j

their duties. |
1

a) any loaded weapon j
!

from which a shot,

readily capable of |
I

producing death or j 

other serious phys-j 

ical injury, may 

be discharged.

b) switchblade knife

c) gravity knife

d) dagger

e) billy

f) blackjack



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PROGRAM NOTES

I9 Necessary

g) metal knuckles 

In all of the deadly 

physical force cate­

gories, special 

attention must be 

given to this phrase. 

The Penal Law gives 

no specific defini­

tion as to its meaning. 

For the purposes of 

the deadly physical 

force section, it 

could be interpreted 

to mean "only after 

all other moans of 

attaining a desired 

effect have failed".

In a general sense, physical force may be used 

lawfully .̂ D protect people, real and personal 

property for the purpose of preventing or 

terminating an offense or apprehending a 

perpetrator. Deadly physical force, however.



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can. only .be used legally under very restricted 

circumstances, described below.

In order to prevent or terminate specified 

crimes, a police officer may use deadly 

physical force under the following circum­

stances :.
a) when he reasonably believes deadly

«
physical force is necessary to pro-♦

. * vent or terminate deadly physical

force from being used against
*

himself or another (PEOPLE).

b) when he reasonably believes deadly 

physical force is necessary to 

prevent or terminate a forcible 

rape, forcible sodomy, kidnapping 

or robbery from being committed 

against himself or another (PEOPLE).

/ Note the phrase "prevent or termi- 

nate". If the perpetrator has
'  ,0

• completed the crime, the application j

•' of deadly physical force may still 

be justified legally, but not

PROGRAM • _______________________ ______________________ _________ NOTES



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PROGRAM MOTES

necessarily morally (See "Moral 

Responsibility" below).

c) when he reasonably believes deadly 

physical force is necessary to 

prevent or terminate a burglary 

AND;
he is in possession or control of,

. or licensed or privileged to be in 

a DWELLING OR OCCUPIED BUILDING.,♦
' Note that in this section deadly 

physical force can be used, when 

necessary, to prevent or terminate 

a burglary in the second degree. 

However, the legal and moral 

application of deadly physical 

force may no longer be justified 

after the criine has been completed 

(Burglar appeared to be armed but, 

in reality, was not).

d) .‘ when he reasonably believes deadly 
' .0

• physical force is necessary to 

piC'^ent or terminate an arson or 

attempted arson (RE.̂ .L PROPERTY) ,



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PROGRAM NOTES

" ’ * Again, take note of the words pre­

vent or terminate.

It must ;be understood that deadly physical force 

may never be used to prevent or terminate a pure 

larceny or criminal mischief, REGARDLESS OF THE 

VALUE. -(PERSONAL PROPERTY) .

la order.'to effect or attempt to effect an 

'arrest, .cn: to prevent or atteu.pt to present•fc
«

• an escape from custody under specified cir- 

cuipstances, a police officer may use deadly 

physical force as follows;

a) when he reasonably believes deadly 

physical force is necessary to 

effect or attempt to effect an 

arrest, or to prevent or attempt 

to prevent the escape from custody 

of a person whom he reasonably 

believes to have committed or 

• attempted to commit:
*

.  ̂ 1) a felony involving the use or

attempted use or threatened 

imminent use of physical force



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PROGRAM MOTES

against a person; or i
I2) kidnapping, arson, escape in '

. i
: . the first degree or burglary '

I
• ; in the first degree; or

3) a felony, and that in the course' 

of resisting arrest therefor or [I
attempting to escape from cus-

• i
. tody, such person is armed |

' . * with a firearm or deadly weapon.
• b

4) any offense which is the subject

. of the arrest or attempted es­

cape, when it is necessary to 

defend the police officer or 

another person from what the 

officer reasonably believes to 

be the use or imminent use of 

deadly physical force.

IT IS IMPORTANT TO NOTE THAT EVEN THOUGH A

POLICE OFFICER IS JUSTIFIED IN USING DEADLY

^PHYSICAL PORCE, HE WILL NOT BE JUSTIFIED FOR 
• •

RECKLESS* CONDUCT AMOUNTING TO AN OFFENSE

AGAINST OR WITH RESPECT TO INNOCENT PERSONS



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PROGRAM MOTES

WHOM HE 1*5 NOT SEEKING TO ARREST OR RETAIN

IN CUSTODY,

DEPARTMENT POLICY

There have been occasions when police officers, 

performing their duties within the scope of 

lawful authority, have accidentally shot 

innocent'persons and fellow officers. In an 

' attempt, to preclude repetition of such tragic 

- incidents. Temporary Operating Procedure No.

'.2̂ 7, series 1972 (Use Of Firearms By Members 

Of The Force And Establishment Of A Firearms 

Discharge Review Board) was promulgated on 

August 13, 1972. It documented the Department 

policy for the use of firearms by members of 

the service. This policy, established to 

preserve and protect life wherever possible, 

is as follows:

.a) In all cases, only the minimum

amount of force, consistent with
« the accomplishment of a mission,
• •

will be used. Every other 

reasonable means will be ^ilized



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PROGRAM NOTES

for arresting, preventing or 

terminating a felony, or for the 

defense of oneself or another, be- 

;; fore the police officer resorts to 

the use of his firearm, 

b) A firearm shall not be discharged
I

under circumstances where lives |• . I
■' of innocent persons may be

. endangered.
«

•c) The discharging of a firearm to 

suixm'ion assistance is prohioited, 

except where the police officer's 

safety is endangered,

d) The firing of a warning shot is 

prohibited.

e) Discharging a firearm from or at

a moving vehicle is prohibited un­

less the occupants of the other 

* vehicle are using deadly physical

force against the officer or another, 

by means other than the vehicle. A 

• service revolver is not intended to, 

and is rarely effective in stopping



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PROGRAM MOTES

a moving vehicle. An officer can

• better avoid an oncoming vehicle 

by jumping aside than by firing

• his handgun at it. Other moons,

including radio communication

(both car radio or walkie-talkies),

•, close pursuit, roadblocks, etc.

will be used to cause the vehicle

, to stop.
«

f) Members of the service will be held 

responsible for the use of firearms 

not consistent with the policy 

enunciated in the guidelines. In 

this respect it is most important 

that all members of the service be 

aware of two (2) Los Angeles County 

precedent setting court decisions, 

recently rendered but not yet

* published. In both cases, which 

*■. were unrelated, the officers

‘ involved were found negligent in 

. ’ civil actions because they violated 

restrictive regulations on the use



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PROGRAM NOTES

of their firearms imposed by their 

(Los Angeles Police) Department,

, . although their actions wore justi­

fied by the California Penal Law and 

inquiries by Grand Juries resulted 

. in no true bills. The court held 

■- that the negligence "per se"

.• violated Department policy.

Judgements of $800,000 and 

$1,000,000 have been awarded. The 

significance of these two decisions 

is their relevance to our T.O.P. 237.

MORAL RESPONSIBILITY

Except for corruption or violation of personal

integrity, there is no other police conduct

which will, bring more criticism from the

public than the misuse:, excessive use or

unskilled, *use of firearms. Its judgement of

such injudicious employment of firearms would

not be predicated on legal transgressions alone; 
• •

it would -also consider any breach of moral 

responsibflity. Consequently, it is most



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PROGRAM NOTES

irtip’ortant* that members of the service be made 

thoroughly aware of their moral as well os their 

‘legal obligations. The legal responsibility 

was de.sc.fibed above. Moral responsibility as
* 4

it relates to the lawful use of deadly physical 

force will now be discussed.

In previous times civilian members of the
, t * •
.community, themselves were the insurers of its

’  * fc* •
tranquility. If one of the group in a tribal

•society failed to conform to the established *
orders, he was driven from the group and for­

bidden to return. In medieval times a hue and 

cry was immediately forthcoming when an unlaw­

ful act was committed. All able bodied men were 

then required to respond to seek out and capture 

the wrongdoer. Presently, bodies of uniformed 

men and women are salaried to perform all tasks 

necessary* to enforce the peace. In this regard

each police officer must thoroughly understand * ,#
that the* pcswcrs possessed by police are delegated

to them by their employer---the comraunity. It

is this QCMTiraunity that demands the proper



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enibrcorhc’nt of its lawS/ even to the extent 

of using deadly physical force, but expects 

moral responsibility from its professional 

police officers in the course of performing 

their sworn duty. What then is moral responsi­

bility?. It can be defined generally as the 

conscionable accountability on the part of tne 

police officer, lawfully authorized to employr
his revolver against another, to use only the 

minimal■force necessary, and to make every 

.effort, including total weapons discipline 

if necessary, to preclude endangering innocent 

persons.

PROGRAM ___________ _________________________ ____________________ NOTES

One of the most important aspects of any police

firearms training program is to instill this

sense of moral responsibility into each member

of a police service who might one day be

required to use a firearm against another

huraan being. But first the police roll in

today's. society must be understood. Its 
• *

mission"is different than that of the military 

who must'seek out and destroy the enemy with



(1 9 )

PROGRAM NOTES

minimal thtnight paid to innocent persons. The
* • police mission is to seek out the eneniy of an 

drdered society and deliver him to the criruinal 

' justice, sy;stern in order that his conduct may

be judged.. It also can be added "so that an
► * . • *

atmosphere of tranquility might be created in

the community/ permitting its residents to go

about their’ lives peacefully, in accordance » *
with the community's standards of conduct".

■p))i3 objective, however, must be accomplished

within the framework of the law, using the *
minimum force necessary and giving prime 

consideration to the welfare of innocent 

• -.persons.

A police officer confronted with any serious, 

unlawful condition must take some action. If 

the situation is one in which there is an 

• imminent possibility of the officer using deadly 

physical force, the decision to so act usually 

must be made instantly. If his response is not 

immediate, his life and/or the lives of innocent 

people may.be unnecessarily endangered. If he



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PROGRAM NOTES

exerts deadly physical force mistakenly or 

accidentally, he may be loyally justified, but 

condemned for his action. Unfortunately he 

does not enjoy the "luxury" of a justice in a

• court of law who encounters a complicated legal 

problera.. In such instance the jurist, after 

obtaining all the facts at a hearing, may call 

in an amicus curiae for advice or reserve 

decision to further contemplate the facts. The 

of ficer-, * however, must act and his actions must

• be morally as well as legally correct. Such

rnsral responsibility con be exemplified as the

behavior that a prudent person would show under

a given set of circumstances. Such a person

would not be expected to obtain his objective

by simultaneously creating a potential for a

catastrophe. For example, shooting at a

perpetrator in a moving vehicle, thereby
risking -striking the operator and causing the

vehicle-to go out of control possibly injuring

or killii>g innocent person(s), or firing a 
»

, warning shot, exposing passersby to similar 
• •

risks from direct hits or ricochets. But how



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PROGRAM NOTES

c^n.we maĴ e police officers aware of the need 

for moral responsibility in the course of 

.deciding whe’ther to use deadly physical force 

upon another? By training them in the exercising 

of judgement under simulated conditions.

JUDGEMENT

•Judgement .can be defined as an opinion, estir.iate 
#

or evaluation forraed by discerning and comparing, 

aind aided'by knowledge and experience. A police­

man must have a thorough knowledge of the lawful 
*

use of deadly physical force and related law if 

he is to develop a capability for professional 

response in a potential life or death situation. 

If his life or the life of another is iraminently 

threatened and he is able to initiate deadly 

physical force upon the perpetrator(s), he 

must do so without delay. If there is no 

immediate .threat to life, his judgement on 

how to react should show a sense of moral 

responsibility. Judgements formed by different 

officers in sin^ilar situations would vary. One 

officer may feel that his life is endangered at



( 22 )

PROGRAM NOTES

a given instant^ but not another. This 

variance may be the result of many different 

facets in upbringing and environment/ including 

education/ religion and family bacJcground. In 

an effoict to improve the judgements of officers 

<3uring s'tress situations so as to preclude 

unnecessary loss of life and to stimulate 

desirable responses/ the film "Moment of Decision / 

a' judgehient exercise/ will be shown.

The entire class will view the film which depicts 

realistic police incidents. Prior to the showing 

of each incident/ a member of the class will be 

given a revolver loaded with blank; cartridges.

He will be in empathy with the police officer 

involved in the scene and advised to shoot (by 

pointing*the revolver directly overhead) only 

under the- following conditions:
■g) He has a legal and moral right to 

do so.
b) The tactical conditions dictate

’ • it to be the proper action.• •
c) It ran be done safely.



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PROGRAM KOTES

Immediately after the crucial part of the

incident has been shown, the film will be

-stopped and the student questioned as to why

he did or did not shoot. The class will then

be questioned about the problem faced by the

officer in the scene and the action taken by

the student. In order to stimulate discussion

it is advisable that the instructor play the 
»

role of the devil's advocate when possible.♦
He should*ask questions such as;

a) Did the officer have a legal right
*

to shoot? At what point did he 

obtain this right?

b) . Did the officer have a moral right

to shoot?

c) Was it absolutely necessary for the 

officer to shoot or was there another 

less serious solution?

d) ' Would other persons be placed in

danger?
* ,0

e) Were there alternatives open to the 

•• officer before lie was required to

shoot?



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f) Would the person being fired at

; present a target that the officer 

could expect to hit?
I
The class should be encouraged to answer 

these questions theniselves. The instructor 

sjiould lead the discussion and channel it by:

a) Explaining the law, giving

• ' clarifications and citing court 

. cases.
b) Discussing actual cases faced by 

members of the Department (e.g. 

Detective Capers incident).

c) Suggesting tactical alternati'/es 

open to the officer, as follows:

1) Use of cover to weigh the situa­

tion from comparative safety, 

thereby affording him time to 

make a judgoiaent that is sound 

legally, morally, tactically and 

safety-wise.

2) Holding his challenge or fire
4

■ < until he is in a more advan-
4 •

tageous position to retaliate.

PROGR/^M__________:_____________ ______________________________________ NOTES



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PROGRAM llOTES

• should he be required to do so.
 ̂ » • 3) The use of the best shooting

position and type of fire, if 

it should become necessary to 

shoot.

The film should then be continued so that the 

action taken by the officer in the scene con

’be observed by all.
*

> ♦

A prin.e objective of this film is to make the 

student realize that a fired bullet must be 

considered a force readily capable of producing 

• : death or other serious physical injury, and

. his responsibility in employing a firearm 

during a confrontation.

Finally, it should be pointed out that there 

are very tew instances in which an officer might 

be obligated to use his firearm. Unless there 

is an imnbdiate necessity to protect a human 

life (hid own or another individual), great 

discretion’should be used before he permits 

himself to act as judge, jury and executioner



«*• (26)

PROGRAM ITOTES

for another human being. In such instance, it 

is far better if the perpetrator is taken 

from the initial contact in the"street" and 

tried in- the criminal justice system.

REFERENCES

New York State Penal Law
Temporary Operating Procedure No. 237, s. 1972 
The, Police Officer's Use of Force:

LAW AND LIABILITY (Police Training Institute
University of Illinois) 

History of Police by Gallati

grb

Francis J. McGee 
Lieutenant-Police Academy 
Officer In Charge 
Firearms Section