Fact-Finding Report on Police Use of Deadly Force in the City of Benton Harbor

    r.---. . .V,iv:.

FACT-FINDING REPORT ON POLICE USE OF DEADLY FORCE 

IN THE CITY OF BENTON HARBOR

Conducted by

THE MICHIGAN CIVIL RIGHTS COMMISSION 

August 25-26, 1982

MEMBERS OF THE COMMISSION:

Catherine C. Blackwell 
Beatrice Banks 
Alan A. May 
Beverly Clark 
Paul P. Harbrecht 
Gilberto Ibarra 
Dr. Frederick Sampson 
Philip Van Dam

Dr. Ronald L. Quincy, Director
Michigan Department of Civil Rights
1000 Farnum Building
125 W. Allegan
Lansing, Michigan 48913

Adopted by the Commission 
September 21, 1982



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A Report of a Fact-Finding Visit to Benton Harbor 
Relative to an Incident of June 20, 1982 

Involving Police Use of Deadly Force

PURPOSE OF FACT-FINDING REPORT

The events surrounding the June 20, 1982 fatal shooting of Hardy James, 

Jr. by a Benton Harbor police officer demonstrate many of the profound 

problems which the police use of deadly force issue poses for this state.

It is the purpose of this report to examine the events surrounding the fatal 

shooting and to determine how they relate to the December, 1981 report and 

recommendations of the Michigan Civil Rights Commission on Police Use of 

Deadly Force. The Commission is particularly concerned about the role

played by written police department policies in the use of deadly force.

The following report of the fact-finding effort in Benton Harbor 

summarizes the events in the shooting, evaluates the law enforcement 

response to it, and assesses public reaction both to the shooting and to the 

law enforcement response.

No conclusions have been drawn about either the guilt or innocence of 

Hardy James, Jr. or the police officers who were involved in the events of 

June 20, 1982.

THE EVENTS

Shortly after 3:00 a.m. on June 20, 1982, the Berrien County Dispatcher 

notified Benton Township police that a burglar alarm had been set off in the 

Comet True Value Discount Store in Benton Township, near the line between 

the township and City of Benton Harbor. Three township officers responded.

Two Berrien County Sheriff deputies and a single officer from Benton 

Harbor also responded. As the Benton Township and Sheriff's deputies searched 

through the store. Hardy James, Jr., a 32 year old black man, ran from a back 

storeroom to the front of the store. A township officer fired three shots at 

him from his .357 revolver. James exited through a broken window, wrestled



FACT-FINDING VISIT
BENTON HARBOR

with a Sheriff's reserve deputy and broke free. As he ran, a Benton Town­

ship officer fired three shotgun shells with a pellet from the first striking 

him in the finger. He apparently stopped, and raised his hands after the 

first shot, but then continued running. James ran across the railroad tracks 

which divide the township and city, and began running through a lighted, open 

area between buildings.

Officer Dean Starke of the Benton Harbor Police Department saw him 

running and from a position inside the township, fired two shots. The second 

struck James in the head and killed him. The fatal shot was fired from a 

distance of 298 feet. James was unarmed.

An internal review was completed by the City of Benton Harbor soon 

after the shooting. The question of whether the Benton Harbor Police 

Department's use of firearms policy had been violated was left open, but 

disciplinary action relative to Officer Starke was recommended by his superiors 

for leaving his assigned patrol boundary in Benton Harbor on an unauthorized 

basis to respond to the alleged burglary of the Comet True Value Hardware 

Store. While a five-day suspension without pay was recommended, no disciplinary 

action had been carried out as of the time of the fact-finding visit. Officer 

Starke was suspended for two weeks as a result of the fatal shooting. An 

opinion was requested of the Benton Harbor City Attorney as to whether the 

police department's deadly force policy had been violated. The City Attorney 

found no violation of the policy, and Officer Starke was reinstated with no 

loss of pay or benefits.

The Berrien County Prosecutor concurrently reviewed the Benton Harbor 

officer's actions. He found no violation of state law in the fatal shooting 

of Hardy James, Jr. and issued a release articulating that opinion.



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An autopsy was also performed.

Following the shooting, members of the community attended a Benton 

Harbor City Commission meeting. The majority asked for explanations regard­

ing the shooting and why no disciplinary action had been taken relative to 

Officer Starke. Of paramount concern was the feeling of community people 

that the Benton Harbor Police Department's policy on police use of deadly 

force had been violated.

Subsequently, the Twin Cities Area Branch of the NAACP requested inter­

vention by the Michigan Attorney General and the U. S. Department of Justice 

in the matter. To date, no clear course of action has been indicated by 

either body.

THE FACT-FINDING VISIT, AUGUST 25-26, 1982

After the Commission reviewed the Benton Harbor District Executive's 

report on the above events. Commissioner Clark was asked to lead a fact­

finding team to review the Benton Harbor incident in the context of the 

Commission's earlier findings and recommendations regarding police use of 

deadly force. On August 25, the team reviewed the actual shooting site and 

available materials. On August 26, the team met with the following persons:

- Benton Harbor Public Safety Director Sam Watson, Jr.

- Benton Township Acting Police Captain Jack Drach

- Berrien County Prosecutor Paul L. Maloney
- Benton Harbor City Attorney Donald D. Dettman

- Benton Harbor City Commissioner Juanita Echols

- Twin City Area NAACP President Mary DeFoe

- Inez Holmes, Urban Gateway

On the evening of August 26, the team held an open public meeting to 

hear coriments on the shooting from members of the community. Present in 

the audience was the brother of Hardy James, Jr.



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BENTON HARBOR

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During the visit and immediately after, the team reviewed additional 

documents in preparing the report identified during the fact-finding visit.

THE IMPACT OF POLICE POLICIES REGARDING USE OF DEADLY FORCE

During the development of the Commission's report on police use of 

deadly force, the need and value of strong and uniform police department 

policies was emphasized. The primary focus of the fact-finding team was 

on the application of the Benton Harbor policy relative to the fatal shoot­

ing of Hardy James, Jr. by a Benton Harbor police officer.

A. Appiication. The Benton Harbor policy is a restrictive one.

It was developed in 1976 by Andrew Rodez, who was then Police 

Chief of Benton Harbor and who completed his Ph.D dissertation 

on deadly force policies after he left Benton Harbor.

The policy is paraphrased in relevant parts below.

Section A.4 permits deadly force when a known felon has used or 

has threatened use of deadly force "and when all other attempts 

to prevent escape have failed." An officer is also required to 

consider whether delay would lead to injury of others and to the 

"likelihood of a non-violent apprehension at a later date."

Shooting is prohibited in Section B.5 unless the officer "should 

either have witnessed the crime or have sufficient and reliable 

information to know as a virtual certainty that the suspect 

committed an offense in which deadly force was used or threatened.'

Further, firearms cannot be discharged when there is a danger of 

hitting innocent bystanders.



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OffTcers are also specifically cautioned that "...the crime of 

burglary in and of itself is not considered a violent felony. 

Therefore, deadly force shall not be used to halt the escape of 

a fleeing suspect..."

To these standards the City Attorney added a "reasonable and prudent 

judgment" standard to these parts of the policy because in his judgment, 

the prohibitions in the policy contemplated circumstances in which shooting 

was appropriate and deadly force justified. No mention is made of the virtual 

certainty standard in his opinion, nor that alternatives must be used.

Facts cited by Mr. Dettman to support the reasonable and prudent judgment 

conclusion:

1. The known presence of guns inside the store. During our inter­

view with Mr. Dettman, he characterized the store more broadly, 

as having a reputation for having guns and a history of prior 

break-ins. The team's conversation with store personnel disclosed 

no recent thefts involving arms or ammunition.

2. Several shots had been heard by Officer Starke before he fired.

This was commented on by several other persons as particularly 

relevant to the officer's eventual use of deadly force.

3. The suspect was fleeing toward a residential area where pursuit 

of the suspect would have placed innocent bystanders and city 

residents in a great jeopardy. This was reinforced "...once it 

became known that piles of weapons and ammunition were found on 

the floor of the Comet Discount Store."

The innocent bystander standard raises a critical issue. During the 

fact-finding team's discussion with various law enforcement officials, the 

question of possible harm to innocent bystanders posed by the officers' 

shots was raised. There appears to be some confusion as to whether the



FACT-FINDING VISIT
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houses on the street behind the shooting were in the actual line of fire.

This question was not addressed in any of the written reviews by the County 

Prosecutor, City Attorney or police officers. One verbal response by a 

police official to this question ruled out the possibility of harm to the 

neighborhood adjacent to the shooting area on the grounds that the officer's 

.38 service revolver could not fire that far.

During our meeting with the Prosecuting Attorney, Mr. Maloney stated that he 

had not considered the standards in the Benton Harbor department policy 

because his review was based on the criminal law rules governing deadly force.

We find no standard in the Michigan rule which would require consideration of 

a department's policy by a prosecuting attorney in rendering an opinion on 

police use of deadly force.

The Prosecutor also indicated that he made no assessment of the earlier 

uses of deadly force prior to the fatal shot being fired by Officer Starke.

Three shots were fired by a Benton Township police officer inside the hard­

ware store and three rounds from a shotgun were fired outside the store at 

Hardy James, Jr. No request was apparently made to determine whether these 

initial shots were necessary to apprehend the suspect, given the fact that 

police officers were positioned outside the store. Only the final shot of 

an eight-shot deadly force chain was reviewed.

Since police policies generally prohibit warning shots, when an officer 

fires at a suspect, he presumptively fires with intent to use deadly force.

In the incident involving Hardy James, Jr., the chain of events involving 

the early use of police weapons became the cause and later justification for 

Officer Starke's final fatal shot.

The imprudent use of deadly force has another component as well. A 

significant number of police officers are shot and killed by other officers 

in responding to suspected felony crimes. In the Benton Harbor incident, a



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large number of shots were fired in situations in which officers could have 

been struck. Indeed, police reports of the incident reveal that one officer 

was told to "get out of the way" of another officer who had fired one shotgun 

round and found another officer in his line of fire.

Neither of these issues related to the police use of deadly force was 

addressed by either police or civil officials.

Two needs are underscored in these official reviews: (a) the public

must understand the limitations of a written department policy when the 

Michigan deadly force law is being applied; (b) any policy or legal review 

should touch all relevant standards in the law.

B. Uniformity. In the James shooting, there were three departments 

involved with three different deadly force policies. Benton 

Township requires a reasonable belief that deadly force is 

necessary to prevent the escape of a person charged or convicted 

of a felony. The Berrien County Sheriff's policy permits use 

when it is "consistent with the authority granted a police officer." 

At least two officials remarked that there would have been no 

question of Officer Starke's actions under the Benton Township 

policy.

The fact-finding team recognizes that there are practical reasons 

why police agencies should work together. The team observed in 

the James shooting, however, that problems arise when different 

departmental standards are applied to the same situation. If the 

reasonableness of Officer Starke's actions is predicated on the 

actions of officers who are already firing and these officers 

begin firing with a different standard, difficult factual and 

legal questions are raised.



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Benton Township. There appears to have been no review of the 

actions taken by Benton Township officers, except as they applied 

to the actions of Officer Starke. The autopsy indicated that a 

shotgun pellet had struck Hardy James in the finger. While the 

direct cause of death was obviously another shot, it is appropriate 

for police and civil officials to review any action in which deadly 

force is used, particularly when injury results.

Training. In response to questions, the Benton Harbor Safety Director 

and the Acting Chief of Benton Township indicated that budget 

constraints precluded the specific shoot/don't shoot training in 

the individual policies which the two departments used. Training 

is limited to a yearly range qualification for accuracy and 

periodic reviews of departmental policies.

FINDINGS

1. The fatal shooting of Hardy James and the law enforcement response to it 

show the complex problems which arise through interpretation of current 

state law regarding police use of deadly force.

2. The primary concern which results from the fact-finding effort lies in 

the use of police departments' deadly force policies. Our concern is 

based on;

a. The review of the policy by the City Attorney did not include all 

parts of the Benton Harbor policy. The policy is a strong one and 

requires consideration of innocent bystanders, exhaustion of alterna­

tives and a virtual certainty that the person shot was the person 

who committed the alleged felony.



FACT-FINDING VISIT
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b. The City Attorney's opinion considered what was reasonable and 

prudent. The policy does not contain this standard, but the 

standard was used to contravene an express prohibition against 

shooting in a burglary.

c. The review by the Berrien County Prosecutor did not include 

consideration of the Benton Harbor policy. The state law does 

not require that a policy standard be used by the prosecutor.

This points to the continuing need for a state statute with a 

more specific restriction on the police use of deadly force.

d. The public has a right to expect that a police policy can and 

will be enforced. There is doubt in the James case as to what 

the weight the departmental policy actually carries in the field 

situations. This concern was articulated in our public meeting.

e. The two police departments who used deadly force against Hardy 

James (Benton Harbor and Benton Township) have different standards

on restricting the use of deadly force. Benton Township, with a less 

reS'trtcttve policy, was the first department to fire. This factor 

may have influenced the actions of the Benton Harbor officer who 

fired later and was subject to a more restrictive policy. This 

demonstrates the need for uniform policies.

3. The use of the fleeing felon rule in this case was perceived by persons 

in the minority community as an excessive use of force. In addition, 

there are fundamental constitutional issues present in this shooting as 

with any other application of deadly force.



FACT-FINDING VISIT
BENTON HARBOR

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4. There was little evidence of trust expressed by the public at the forum 

held by members of the Commission's team.

5. There is confusion among the officials with whom the team met about the 

risk to the neighborhood residents adjacent to the shooting site and 

whether the Benton Harbor officer was standing in a position where a

a wayward shot or shots could have struck these houses.

6. There has been no training among Benton Harbor or Benton Township officers 

in reacting to shoot/don't shoot situations and in the use of their deadly 

force policies due to budget constraints.

7. The response by the police department and Prosecutor in reviewing the Hardy 

James, Jr. shooting appears to have been prompt. The explanations of 

decisions by the Prosecuting Attorney and the City Attorney were also

made promptly.

8. The public has a right to know the facts regarding such a community tragedy. 

The responsibility for this clearly falls on elected city officials and

the command structure of the police department. The team finds that the 

citizens of Benton Harbor did not have adequate factual information in 

the aftermath of the shooting, despite the official written responses.

9. Regardless of the particular facts surrounding the shooting. Officer Starke 

was back on patrol duty within two weeks of the incident. He returned to 

the streets with no counseling directed at the trauma of the shooting.

Mr. Watson, Benton Harbor Director of Public Safety, stated that such 

an offer was made, but was declined by Officer Starke. The team was 

informed that some time after Officer Starke returned to patrol duty, he 

and a superior officer, while responding to a disturbance at a bar, were 

assaulted by a group of citizens. There are indications that a precipitating



FACT-FINDING VISIT
BENTON HARBOR

- 1 1 -

factor in the assault was the identification of Officer Starke as 

the person who had fatally shot Hardy James, Jr.

10. Regardless of the circumstances, the taking of a human life is traumatic. 

Police officers who use deadly force in the line of duty are not immune 

to the effects of such tragic events. The stigma against psychological 

counseling is real and prevalent within law enforcement agencies. To 

expect that police officers will voluntarily submit to counseling, even 

when desperately needed, is to fail to recognize internal constraints 

against seeking such help. In Officer Starke's case, the need for 

counseling is further underscored by the subsequent incident in the 

community which could greatly increase stress. The potential for 

additional tragedy may be increased by the absence of mandatory 

counseling for any police officer who uses deadly force.

RECOMMENDATIONS

1. The Police Department should affirm and explain the importance of the 

deadly force policy to the community in Benton Harbor. This clarification 

should also emphasize the rights of police officers in shooting situations.

The team suggests community meetings as a way of achieving this recommendation,

2. The City of Benton Harbor, Benton Township, and the Berrien County Sheriff's 

department should develop a uniform policy on police use of firearms, 

particularly during joint policing operations.

3. All incidents in which police fire results in any injury to a citizen or 

other officer should be reviewed by the prosecutor. Further, prosecutors 

should review any use of deadly force by a police officer, not only when 

death results.



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4. The state's professional prosecutor organizations should be requested 

to develop standardized procedures for investigating and explaining 

reviews of deadly force incidents in order to provide uniform, complete 

explanations.

5. The Benton Township Police Department should review the use of deadly 

force by two of its officers during the incident involving the hardware 

store burglary.

6. The Benton Harbor and Benton Township police officers should be given 

specific shoot/don't shoot training in the use of their deadly force 

policies.

7. Department of Civil Rights staff should support any effort by the City of 

Benton Harbor to obtain outside funding for police training and community 

relations.

8. Mandatory counseling is recommended for all police officers who use deadly 

force, regardless of the circumstances. Stress management programs should 

be instituted for all police officers with patrol responsibilities within 

Michigan.

9. It is recommended that the civil and police officials in Benton Harbor and 

all other communities develop a contingency plan for relating to the 

community's need for timely and factual information— in advance of any 

circumstance requiring its utilization.

10. Any model policy or legislation should include a specific requirement that 

all reasonable alternatives to deadly force be exhausted before use. The 

need for this recommendation would be eliminated if the Commission's own 

recommendations on police use of deadly force were adopted by law enforcement 

agencies.



FACT-FINDING VISIT 
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-13-

n. This fact-finding report should be forwarded to the appropriate committees 

in the Michigan legislature which are considering legislation on 

police use of deadly force.



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ATTACHMENT A - BENTON HARBOR POLICY

3ENT0M HARBOR POi.iCE

DEPARTMENTAL
GENE.RAL ORDER 76-10-12-A

TO: All Department Uniformed Personnel

FROM: Chief Andrew L. Rodez

SUBJECT: Policy, Rule and Procedure with regard to use of firearms.

PURPOSE: To establish policy rule and procedure with regard to use of
fi rearms.

The most serious and far-reaching decision an officer has to make during 
his career is whether or not to draw his firearm and shoot, and possibly 
kill, another person.

The officer's necessarily quick decision to shoot another person and the 
facts leading up to that decision are subject to weeks, and even months, 
of legal and perhaps judicial review. At that time a decision is made 
as to the legal justification of the officer's action and whether or not 
he should face criminal or possibly civil action as the result of a wrong 
decision.

It seems somewhat incongruous that the law of the State of Michigan for­
bids the penalty of death no matter how serious the proven crime, but 
is not concise as to the use of deadly force allowed a policeman in appre­
hending an alleged felon.

This places an awesome responsibi1ity on an officer to make a legal and 
just decision with regards to the use of fir-earms.

I feel, therefore, that in light of State Law, or lack thereof, we i:r.jst 
use prudent and sound judgement when faced with the question of using 
deadly force in the course of our duties.

The intent of the regulations is to provide the officer with guidelines 
which will result in the proper and legal lise of firearnis and protect the 
officer from subsequent criminal or civil action.



" c r01. i.ir.'t l I'la o ;

;s.T,w]5 t pi'.jcticc w'tn appropriate sario'.

To kill anirrals v/hich appear dangerous, or seriously injured.

Self Defenj£ - To protect self and other persons from assaults 
wM~(± 1 ik~e 1 y will produce serious injury or death.

Fleeing Offender - Only when it is a known felon who has used, 
or threatened to use, deadly force in the commission of a crime 
and when all other attempts to prevent escape have failed. An 
important aspect in making the decision to use deadly force is;

Whether or not to delay the arrest may result in 
additional injury or death to officer or other 
persons.

The liklihood of a non-violent apprehension at a 
later date.

Known or Suspected Juveniles - Deadly force shall be used only 
as a last resort in self defense as outlined in Section A, Para­
graph 3, and to apprehend a known fleeing felon in-the most extreme 
cases involving violent crimes, and when all other attempts to 
prevent escape have failed. Again, a decision shall reflect:

a. The likelihood of a non-violent apprehension at a 
later date.

b. If delayed apprehension may result in injury or death 
to an officer or other persons.

B. FIREARMS SHALL NOT BE USED IN THE FOLLOWING INSTANCES:

1 Resisting Offender - An officer shall not use deadly force to 
protect himself or others from assaults that are not likely to 
have serious results.

2 .

3.

4.

5.

To apprehend fleeing misdemeanants. 

From moving vehicles.

Warning Shots.

Suspicion of Felony - Deadly force shall not be used on mere suspi­
cion that a criiCie, no matter how serious, has been committed, or̂  
that the person being sought ccinmitted the crime. The officer should 
either have witnessed the crime or have sufficient and reliable in­
formation to know as a virtual certainty that the suspect com.mitted 
an offense in which deadly force was used or threatened.

Firearms shall not be 
innocent by-standers.

discharoed when there is a danger of hitting



f<o-fce tnat the cri^ie of burglary io an of itseJF is not c.ousSde.'rĉ  a
v i o l e n t  " o i o n y .  7 i , e r e r c :  - .  1 ^ u : v  : -  - i j l i  n i ' t  ne . . -u l u  ' . ' 1 lI iit̂re
the escape of a burglary r«, .-« ^  ,r'H • •• • ■
or a suspect, who in many cases is a 
cer in legal jeopardy.

Hi veil
O O'

t h a t \  p i  a c i  ng orri

if f

GENERAL REGULATIONS - USE OF FIREARMS;

Officers shall not unnecessarily display firearms nor draw 
them in any public place e.xcept for inspection and when they 
are to be used.

Any member who has discharged a firearm shall make an entry 
in his notebook of the shooting, and shall submit a report to 
his commanding officer stating the time, place, and circum­
stances under which the weapon was fired, how many shots were 
fired, and in what general direction. This procedure shall be 
followed whether the discharge of the firearm was deliberate 
or accidental.

D. CARE AND INSPECTIONS OF FIREARMS:

Members shall keep their issued revolvers clean and in seî '̂ iceabTe 
condition, and under no circumstances shall they leave their revol­
vers in any place where they may fall into the hands of a prisoner 
or any unauthorized person.

2. Shotguns and rifles shall be stored in gun cabinets at the station
When being carried 
loaded, except that

except when being carried on patrol in actual use.
in patrol cars, shotguns and rifles shall be fully
no shells shall be placed in the chamber, and they shall not be left
unattended in motor vehicles unless necessary, and then onl-y when the
doors to such cars are securely locked.

3. Commanding Officers shall make regular inspection, at least monthly.
of all firearms issued members of their commands, and shall see that 
all such firearms found to be defective are turned in to the Chief 
of Police for repair or exchange.

3y Order Of:
y/

Andrew L. Rodez 
‘lief of Police.ni

Issuance Date; 
Effective Date:

10/12/76
10/18/76



ATTACHMENT B - BENTON TOWNSHIP POLICY

Taken from the Benton Township Police 
Department's regulations

3 0 . USE OF FIREARMS - Officers shall not unnecessarily display revolvers



y I, .

Page 22

nor draw them in any public place except for inspection and when 

they are to be used. Officers shall not discharge firearms except!

a. Under instruction at a target range.

b. When necessary to kill animals.

c. To prevent the escape of a person charged with or convicted 

of a felony or when a felony has been committed, to prevent 

the escape of a person an officer has just cause to believe 

committed that felony.

d. An officer may use his firearm in self defense or to protect 

himself from serious injury but he is not permitted to use 

it to protect himself from assaults that are not likely to 

have serious results. What the officer may do in his own 

defense, he is authorized and required to do in the defense 

of a prisoner whom he has in custody. The same Is true of 

any citizen or fellow officer upon whom a dangerous assault 

has been made.

e. Warning shots are prohibited. Mere suspicion does not justify 

the use of the firearm. The nature of the offense for which 

he Is making an arrest, his own safety and the safety of in­

nocent persons will generally Indicate to the officer what 

action is to be taken. It Is the responsibility of the officer 

to use his weapon only when circumstances warrant it. Any mem­

ber who has discharged a firearm except at an established tar­

get range shall immediately notify his supervisory officer of 

the same. He shall make an entry in his notebook of the shoot­

ing and shall submit a report to his commanding officer stating 

the time, place and circumstances under which the weapon was 

fired, how many shots were fired and In what general direction. 

This procedure shall be followed whether the discharge of the



■ -■ f i . -r iJ ' v ~ i* '2  ;.s »V . 5 S

Page 23

firearm was deliberate or accidental.



ATTACHMENT C - PROSECUTOR'S REPORT

COUNTY OF BERRIEN
Ij  \ ■ \ 1 ’■ i i o  ii, 1 j  1

Office of the Prosecuting Attorney
PAUL L. MALONEY  
Prosecuting Attorney

JOHN C. BRUHA  
Chief Assistant

THOMAS R. SCHADLER  
Chief Investigator

PRESS RELEASE

^  -  J 5"- F
Courthousi; 

St, Joseph, Ml 
49085-1193

(616) 983-7111 
Extension 311

AFTER CONSULTATION WITH BERRIEN COUNTY PROSECUTOR PAUL MALONEY, CHIEF ASSISTANT 
PROSECUTOR JOHN BRUHA TODAY RULED TH4TTHE JUNE 20TH SHOOTING DEATH OF A BURGLARY 
SUSPECT NOW IDENTIFIED AS HARDY JAi-lES, JR,, AGE 32, BY A BENTON HARBOR POLICE 
OFFICER, WAS JUSTIFIED UNDER MICHIGAN LAW. BRUHA MADE THE RULING FOLLOWING A 
THOROUGH REVIEW OF THE REPORTS FROM ALL OFFICERS INVOLVED IN THE INCIDENT AND 
ADDITIONAL INVESTIGATION BY THE PROSECUTOR'S OFFICE.
THE REPORTS AND INVESTIGATION DISCLOSED THAT ON JUNE 20, 1982, AT APPROXIMATELY 
3:07 A.M., OFFICERS OF THE BENTON TOWNSHIP POLICE DEPARTMENT AND OTHER LAW 
ENFORCEMENT AGENCIES RESPONDED TO A BURGLAR ALARM AT THE COMET TRUE VALUE 
HARDWARE STORE AT M-139 AND PIPESTONE ROAD IN BENTON TOWNSHIP, AFTER FINDING A 
BROKEN FRONT WINDOW PANE, SEVERAL OFFICERS ENTERED THE BUILDING TO INVESTIGATE. 
THEY DISGOVERED A NUMBER OF GUNS AND OTHER MERCHANDISE LAYING IN A PILE A SHORT 
DISTANCE INSIDE THE STORE. OFFICER DEAN STARKE OF THE BENTON HARBOR POLICE 
DEPARTMENT, WHO WAS OUTSIDE GUARDING THE NORTHEAST CORNER OF THE BUILDING,
LOOKED THROUGH A WINDOW AND SPOTTED A SUSPECT WEARING A RED SWEATER VEST INSIDE 
A REAR STORAGE AREA OF THE BUILDING AND COMMUNICATED THIS TO OFFICERS INSIDE THE 
STORE. THE OFFICERS INSIDE THE STORE FOUND THE SUSPECT HIDING IN AN AISLE. THE 
SUSPECT JUMPED UP AND BEGAN RUNNING TOWARDS THE FRONT OF THE STORE l^AR WHERE 
THE GUNS WERE PILED. WHEN THE SUSPECT FAILED TO HEED THE OFFICERS' ORDERS TO 
STOP, THREE SHOTS WERE FIRED AT THE SUSPECT BY AN OFFICER INSIDE THE STORE. THE 
SUSPECT RAN THRU THE PLATE GLASS WINDOW THAT HAD BEEN BROKEN TO GAIN ENTRY TO 
THE STORE, AND WAS GRABBED BY ANOTHER OFFICER OUTSIDE THE STORE. THE SUSPECT 
BROKE FREE FROM THIS OFFICER AND RAN NORTHWESTERLY TOWARDS A FENCED LOT.
OFFICER ST.ARKE AND BENTON TOWNSHIP OFFICER MICHAEL KRUGH, WHO WAS GU.ARDING THE 
WEST SIDE OF THE HARDWARE STORE, HEARD THE SHOTS INSIDE THE BUILDING, BUT DID 
NOT KNOW WHO HAD DONE THE SHOOTING. OFFICER KRUGH SPOTTED THE SUSPECT RUNNING 
WEST ALONG THE FENCED LOT, AND WHEN THE SUSPECT IGNORED REPEATED WARNINGS TO 
STOP, FIRED ONE SHOT FROM A SHOTGUN AT THE SUSPECT, WHICH MAY HAVE WOUNDED THE 
SUSPECT ON THE FINGER, THE SUSPECT CONTINUED RUNNING WEST ACROSS A PARKING LOT 
AT THE REAR OF DAVE'S FRUIT HAVEN, AND OFFICER KRUGH FIRED TWO MORE SHOTS AT THE 
FLEEING SUSPECT. THE SUSPECT KEPT RUNNING WEST ACROSS THE RAILROAD TRACKS WEST 
OF DAVE'S FRUIT HAVEN, AND ALONG THE NORTH SIDE OF THE BENTON HARBOR SCHOOL BUS 
GARAGE TOWARDS MILTON STREET.



PRESS RELEASE - CONTINUED

IN THE MEANTIME, OFFICER STARKE HAD RUN AROUND THE FRONT OF DAVE'S FRUIT HAVEN 
AND, WHILE STANDING NEAR THE NORTHWEST CORNER OF DAVE'S FRUIT HAVEN, YELLED FOR 
THE SUSPECT TO HALT. WHEN THE SUSPECT FAILED TO DO SO, HE FIRED TWO SHOTS FROM 
HIS SERVICE REVOLVER AT THE SUSPECT, WHO WAS RUNNING PAST THE SCHOOL BUS GARAGE 
APPROXIMATELY 100 YARDS AWAY. THE DISTANCE WAS LATER MEASURED TO BE 298 FEET. 
THE SECOND SHOT HIT THE SUSPECT, MR. JAMES, IN THE HEAD, FATALLY WOUNDING HIM. 
THE OFFICERS APPROACHED THE SUSPECT WITH CAUTION, NOT KNOWING WHETHER HE WAS 
ARMED, BUT FOUND NO WEAPON OR IDENTIFICATION ON THE SUSPECT. AN AMBULANCE WAS 
IMMEDIATELY CALLED, AND MEDICS ATTEMPTED TO RESUSCITATE THE VICTIM, BUT MR. 
JAMES WAS DEAD ON ARRIVAL AT MERCY HOSPITAL. TWO OTHER SUSPECTS WERE FOUND 
INSIDE THE HARDWARE STORE, BUT MADE NO ATTEMPT TO ESCAPE.

UNDER MICHIGAN LAW, A POLICE OFFICER MAY USE DEADLY FORCE IF NECESSARY TO 
APPREHEND A FLEEING FELON. THE OFFICERS HAD PROBABLE CAUSE TO BELIEVE THAT MR. 
JAMES HAD COMMITTED THE FELONY OFFENSE OF BREAKING AND ENTERING. IT WAS DARK. 
MR. JAMES HAD IGNORED REPEATED WARNINGS TO STOP, AND CONTINUED TO RUN FROM THE 
OFFICERS DESPITE THESE REPEATED WARNINGS AND SEVERAL GUNSHOTS. THERE WAS NO 
OTHER REASONABLE MEANS OF PREVENTING HIS ESCAPE, AND THEREFOR IT IS THE 
DETERMINATION OF THIS OFFICE THAT THE SHOOTING OF HARDY JAMES, JR. WAS JUSTIFIED 
UNDER MICHIGAN LAW.



ATTACHMENT D - CITY ATTORNEY'S REPORT

P O S E R T  P. S M A L L  
S T E P H E N  C. S M A L L  
D O N A L D  O. D E T T M A N  
D AVID L . O R U M B I N E

L A W  O F F I C E S

8e DBTT>LAJ>r, P. G.
1 2 1 1  E. N A P I E R

B e n t o n  H a r b o r , M i c h .
4Q022

T E L E P H O N E  9 2 S - S I 3 S 
A R E A  C O D E  6 1 6

June 28, 1982

Mr. Sam Watson, Jr.
Director of Public Safety 
Benton Harbor Police Department 
Benton Harbor, Michigan 49022

Re: Officer Dean Starke

Dear Mr. Watson:

C.R.C.

Pursuant to your request for a legal opinion concerning the 
incident which occurred at approximately 3:22 a.m. on Sunday, June 
20, 1982, I have reviewed the following documents: 1) the standard
crime report authored by Patrolman Dean Starke, Benton Harbor Police 
Department; 2) standard crime report authored by R. E. Kienzle,
Benton Township Police Department; 3) standard crime report authored 
by K. H. Diamond, Benton Township Police Department; 4) standard 
crime report authored by M. J. Krugh, Benton Township Police Depart­
ment; 5) the supplemental police report concerning the autopsy 
authored by J. D. Windsor, Patrolman, Benton Harbor Police Department; 
and 5) the internal investigative report and attachments authored by 
L t . Philipp F. Schnieder. Said attachments include three (3) diagrams 
first, the scene of the shooting; second, the location of the body; 
and third, the location of the first bullet fired by Officer Starke. 
Also attached to the internal investigative report are copies of the 
radio logs in minutes and seconds as to all 
the incident, and a special report authored 
F. Easton, Benton Harbor Police Department.
Departmental General Order 76-10-12-A, subject
Procedure with regard to use of firearms_ and General O r d ^  71-2

Use of Deadly Force

radio traffic concerning 
by Acting Sergeant Dale 
Finally, I have reviewed 

Policy, Rule and

Law Enforcement Guidelines onsubject: _________________
an attachment concerning 
the use of deadly force.

law enforcement officer's
with 

guidelines on

In addition to reviewing the above-mentioned documents, this 
writer conducted an approximately hour-long interview with Patrolman 
Dean Starke on Friday, June 25, 1982, concerning the incident in 
question. As a result of my review of the above-mentioned documents 
and my interview with Patrolman Starke, I can report as follows:

STATEMENT OF FACTS

On or about June 20, 1982, at approximately 3:08 a.m.. Patrolman 
Starke completed a transfer of a juvenile offender to Elvern Street in



• •-. V ;.‘. v * : 'J . . i  L '. - . .- ’ ;

page 2 DATE JunG 28, 1982

L A W  O F F I C E  O F  S M A L L .  S M A L L  & D E T T M A N

TO Mr. Sam Watson, Jr.

Benton Township. Soon thereafter Berrien County Dispatcher sent a 
Benton Township Police Department Unit to the Comet Discount Store, 
located on M-139 and Pipestone Street, Benton Township, Michigan. 
Patrolman Starke, on his own initiative, responded to said dispatch. 
Upon his arrival he found that a 2-man Benton Township Police Depart­
ment Unit had arrived at the scene, a front window had been broken 
out, and apparently suspects were believed to be inside the building. 
At this point. Patrolman Starke stationed himself on the north end of 
the building, which would be approximately the corner of M-139 and 
Pipestone Street. Patrolman Starke proceeded to check the windows 
on the east side of the building and in fact shined his flashlight 
into a window on the northeast side of the building and spotted a 
subject crouched inside a storage room. It is important to note that 
Patrolman Starke observed the subject in such detail as to be able to 
note the subject was wearing a red-vested sweater and a pair of dark 
pants.

At this point in time Patrolman Starke radioed to the Benton 
Township Unit his observation and received a reply from a Benton Town­
ship Officer, "Right, we are on it” . Officers Diamond and Kienzle, 
of the Benton Township Police Department, and Berrien County Sheriff's 
Deputy Yops were searching the building at this time. The next thing 
that occurred was 3 shots were fired frominside the Comet Discount 
Store. Patrolman Starke had no way of knowing who in fact fired 
these shots. It was known to Patrolman Starke, as well as the other 
Patrolmen at the scene, the Comet Discount Store carries large supplies 
of weapons, rifles, shotguns, handguns and substantial amounts of 
corresponding ammunition. Indeed, upon later investigation it was 
determined that weapons were piled on the floor during the burglary 
incident, as reported by Patrolman Kienzle.

Radio traffic then indicated one of the suspects was escaping 
from the building through the front window. During this escape attempt 
there was a struggle between the suspect and Berrien County Reserve 
Officer Crandall, in which Officer Crandall was knocked to the ground. 
Benton Township Patrolman Krugh fired one shot from his 12-gauge shot­
gun at the suspect as he was fleeing from the Comet Discount Store 
towards Milton Street. Officer Krugh, having missed on his first shot, 
then proceeded a short distance still pursuing the suspect, and fired 
2 more shots at the suspect from his shotgun, one of the shots hitting 
the suspect in the ring finger of the right hand. The suspect proceeded 
with his escape attempt with Reserve Deputy Crandall still in chase. 
Patrolman Starke, after hearing the 3 shots coming from inside the 
store and the radio traffic that one of the suspects had escaped, on 
his own initiative, changed his location from the north end of the 
Comet Discount Store building and moved towards Milton Street. Said 
action was done based upon his previous experience and instinct that 
the suspect in all likelihood would move towards the residential areas 
off .Milton Street. Patrolman Starke observed the suspect fleeing and



PAGE 3 DATE June 28, 1982

TO Mr. Sam Watson, Jr.

L A W  O F F I C E  O F  S M A L L .  S M A L L  f t  D E T T M A N

recognized him as the suspect whom he viewed inside the Comet Discount 
Store just moments earlier. After Officer Krugh had discharged his 
shotgun at the fleeing suspect 3 times. Patrolman Starke then fired 
one shot from his service revolver, missing the suspect and striking 
the Benton Harbor Area Schools Transportation Center building harm­
lessly. The suspect continued to flee and Officer Starke fired a 
second shot which apparently struck the victim in the back of the 
skull which in all likelihood, according to the autopsy report, was 
the cause of death.

DEPARTMENTAL GENERAL ORDER 76-10-12-A

Departmental General Order 76-10-12-A develops policies, rules 
and procedures with regard to the use of firearms. Pertinent sections 
of Departmental General Order are as follows:

"A. Firearms may be used in the following situations:

4. Fleeing Offender - Only when it is a known felon 
who has used, or threatened to use, deadly force 
in the commission of a crime and when all other 
attempts to prevent escape have failed. An im­
portant aspect in making the decision to use 
deadly force is:

a. Whether or not to delay the arrest may result 
in additional injury or death of officer or 
other persons.

b. The likelihood of a non-violent apprehension 
at a later date.

B. Firearms shall not be used in the following instances:

6. Firearms shall be not discharged when there is a 
danger of hitting innocent by-standers.

Note that the crime of burglary in and of itself 
is not considered a violent felony. Therefore, 
deadly force shall not be used to halt the escape 
of a burglary suspect."

OPINION

It is obvious the Departmental General Order establishing policies, 
rules and regulations and procedures with regard to the use of firearms 
prohibits the discharge of firearms and/or the use of deadly force in an 
attempted apprehension of a burglary suspect. However, the regulation 
itself recognizes that there are situations in which a burglary suspect



PACE 4 DATE Jun© 28, 1982

TO Mr. Sam Watson, Jr.

may be subjected to deadly force. The Departmental General Order 
speaks to "the crime of burglary in and of itself is not considered 
a violent felony". Such language recognizes, as does common sense, 
that there are many situations which can develop as a result of a 
burglary which would justify, and indeed necessitate, the use of 
deadly force. The cover sheet for Departmental General Order 76-10- 
12—A speaks to the state of the law of Michigan concerning a police 
officer's right to use deadly force, and further reiterates that in 
all situations a police officer must use prudent and reasonable 
judgment in his actions, and especially concerning the use of deadly 
force, due to the scrutiny which not only the department and the 
prosecutor's office, but also the public, will place upon his actions.

In the instant situation Patrolman Starke positioned himself at 
the north corner of the Comet Discount Store. He had observed a 
suspect crouched in the store and radioed same to fellow officers. 
Shortly thereafter Patrolman Starke heard 3 shots fired from inside 
the store. Office Starke did not know whether or not the deceased, 
James Hardy, had a weapon. He did not know who had fired all or any 
of the 3 shots, and further, he did not know the conditions of the 
fellow officers at the scene. After hearing radio traffic indicating 
one of the suspects was escaping through the front window. Officer 
Starke proceeded from his previously stationed position towards Milton 
Street. He next observed Officer Krugh fire 2 shots at the fleeing 
suspect. This personal observation served only to reinforce Officer 
Starke's apprehension that fellow officers may have in fact been in­
jured or killed. Officer Starke clearly observed the fleeing suspect 
and recognized him as in fact, the suspect he had just seconds earlier 
observed inside the Comet Discount Store. Officer Starke then, enlight 
of all the surrounding incidents which occurred in connection with this 
burglary, used deadly force which resulted in the death of James Hardy, 
Jr.

L A W  O F F I C E  O F  S M A L L .  S M A L L  a  O E T T M A N

CONCLUSION

It is this writer's legal opinion that Officer Starke used reason­
able and prudent judgment concerning this action of the night of June 
20, 1982. Due to the surrounding circumstances of the burglary incident 
above-mentioned. Officer Starke had just cause to use deadly force. 
Officer Starke did not know whether or not James Hardy, Jr. was armed, 
however, he had heard 3 shots from inside the Comet Discount Store 
where he recognized the possibility, if not the likelihood, that weapons 
and ammunition could be secured. .After hearing the shots and not know­
ing the conditions of his fellow officers, he personally observed 
Officer Krugh apply the use of deadly force. Further, Officer Starke's 
actions were reasonable in that he was attempting to prevent the escape 
of a suspect who was fleeing towards a residential area of the City of 
Benton Harbor, and once it became known that piles of weapons and am­
munition were found on the floor of the Comet Discount Store, it is 
reasonable to assume that any pursuit of the fleeing suspect would have 
taken place in these residential areas which would have placed innocent 
bystanders and city residents in great jeopardy.



* Lw j‘i*Oîj'j«Ai;-̂w: ..îV'x̂̂liafb'iii'i; -î

page 5 DATE June 28, 1982 

TO Mr. Sam Watson, Jr.

L A W  O F F I C E  O F  S M A L L .  S M A L L  & O E T T M A N

Based upon the above premises, I recommend a finding of no violation 
of Departmental General Order 76-10-12-A. This opinion is confined 
solely to whether the Benton Harbor General Departmental Order was vio­
lated. It in no way implies either confirmation or contridiction of 
the findings of the Berrien County Prosecutor's Office to the affect 
OfficerStarke's actions were justified under state law, nor does this 
opinion go to whether there was a violation of any departmental rules 
and regulations concerning the assistance of Benton Township Officers 
in this matter.

If you should have any questions, please feel free to call.

DDD/plp



h•WyfrgWr.'S-\m 'V̂ JrAiJi.'.'f. -'i.-'̂m-, n̂̂•̂V̂V̂̂^̂̂ŷî:<̂̂ ;̂:■Iw■v-»:l/:.v•;̂•̂>̂.■̂̂:::û̂!'̂'■rd>•_̂̂ ‘.‘J:* ':*,

ATTACHMENT E - COMMISSION FINAL REPORT

REPORT ON PUBLIC HEARINGS 

ON LAW ENFORCEMENT USE OF 

DEADLY FORCE

Conducted by

The Michigan Civil Rights Commission

MEMBERS OF THE COMMISSION 
Catherine C. Blackwell 

Beatrice Banks 
Paul P. Harbrecht 

Gilberto G. Ibarra 
Carole L. Chiamp 
Father Theodore LaMarre 
Alan A. May
Rev. Or. Frederick G. Sampson

Ruth Pasmussen, Director 
Michigan Department of Civi 
1000 Farnum Building 
125 West Allegan Street 
Lansing, Michigan 48913

Ri ghts



December 1^, 1981

DEADLY FORCE REPORT RECOMMENDATIONS

COMMnSION RECOMMENDATION #1 : The Legislature should enact a statute which
eliminates the present common law fleeing felon rule.

RECOMMENDATIONS 2 (a): We recommend that the Legislature adopt
limits the use of deadly force by law enforcement officers to

a law wmcn 
1i fe-threateni ng

situations and that staff begin work immediately in working with the Legis­
lature. We believe that this standard represents the strongest protection 
for the community and for the officers and is ultimately the most consistent 
with constitutional requirements.

RECOMMENDATION 2 (b): Weapons should not be permitted to be worn off-duty
unless permission is granted by the commanding officer, based on the need 
to protect the safety of the officer.

Police departments policies should be changed to reflect 
the limitation to life-threatening situations. All departments which do not 
have written deadly force policies should be encouraged to adopt policies.

RECOMMENDATION 3 :
1imi tation to

RECOMMENDATION 4 (a): All police agencies should be required to report all
incidents in which police officers or citizens are shot or killed. These 
reports should include racial data, identified by racial group and circum­
stances in which the shooting occurred, including whether the victim was 
armed or offered resistance, juvenile status, off-duty status, or whether 
shots were fired at or from a vehicle.

RECOMMENDATION 4 (b): Data which is gathered and compiled should identify
the specific racial group to which the shooting victim belong; black, 
Hispanic, Indian, Pacific Islander, etc.

RECOMMENDATION 4 (c): Data on police vehicle pursuit which resulted in injury
to the officer or to a citizen should be requested of law enforcement 
agencies and compiled.

RECOMMENDATION 4 (d): Prosecutors should be required to submit data on the
number of police officers prosecuted during and since 1975.

RECOMMENDATION 5 (a): All police department firearms policies should con­
tain prohibitions against firing at or from a moving vehicle.



RECOMMENDATION 5 (b): All polica departments should have policies on vehicle
pursuit which 1imit pursuits and which acknowledge the risk which chases 
create for persons and. property. We suggest these policies include the 
following:

(a) Recognition that cars can be deadly weapons;

:b) Consideration of alternatives to active pursuit;

(c) Consideration of the risk pursuit may pose to the public, 
the officer and the suspect;

( d ) Consideration of the crime which has been committed;

(e) Controls on speed, which tend to limit the speeds;

(f) Emphasize skilled techniques which would reduce the need 
for pursuits and the risks if pursuit is used;

(g) Consideration of the characteristics of the driver, 
where relevant.

RECOMMENDATION 5 (c): Training programs which emphasize efficiency and skilled
techniques should be implemented as initial training and in-service training.

RECOMMENDATION 5 (d): All police departments should develop reporting require-
ments for incidents in which citizens or officers are killed or injured, or 
if property is damaged. These reports should be forwarded to the Department 
of State Pol ice.

RECOMMENDATION 6 (a); The Michigan Law Enforcement Officers Training'Council 
Should be amended to mandate additional in-service training for all police 
officers on a yearly basis.

RECOMMENDATION 5;(b): The training should include emphasis on shooting discretior
off-duty shooting if guns are permitted off-duty, understanding of cultural 
differences and human relations skills.

RECOMMENDATION 5 (c): The Conmission will carefully review any future legislatior
aimed at paying for the cost of training and may support legislation.

RECOMMENDATION 6 (d): Training programs of all levels of lawenforcement should
increase the skills and background needed to work with minority people.

RECOMMENDATION 7 (a); All police agencies should place a high priority on 
in-service training programs in the use of deadly force and human relations 
skills. These programs should be systematic, frequent programs jwhich emphasize 
safety, sound judgment, human relations skills and cultural dirferencas.

RECOMMENDATION 8 (a): Methods of increasing public trust in the investigation
and review of po i ice shootings is imperative.

REC0MM1ENDATI0N 3 (b): Procedures for receiving and effectively respcncing to
public concerns or inquiries in specicic shooting incidents are necessary.

RECOMMENDATION 8 (c): All shootings should be reported immediately through the
command structure, which is already the procedure ^n many departments. An 
internal investigation should be conducted immediately.



RECOMMENDATION 3 (d): , A panel of three investigators should be dravvn rrcm
a pre-selected 
investigation, 
agency.

3t of law enforcement officers to also conduct a concurren-

RECOMMEND ATTn>N 3

The''panel should not include any memoers oi
I

(e);

'.e orricar

1 lUM ^ ■ The reports of the internal and external investigations 
should be submitted to local prosecutor and to tne attorney general, includ­
ing detailed information on the investigation.

RECOMMENDATION 3 (~~)ji-'.i lUMun 1 iUM The internal and external investigative reports and the
aports of the local prosecutor, plus the result of any review by the attorney 

general, should be made public.

RECOMMENDATION 9 (a): Legislation should be enacted to requireall situations
Tn which i security guard kills or wounds a member or the publ ic ..o be rev.ewed 
bv the Department of Attorney General and investigated by the Attorney General 
if there is reason to believe the use of deadly force was excessive. Racial 
data should be included.

The recommendation as originally proposed by staff should be withdrawn.

RECOMMENDATION 9 (b); The state licensing act for security guards should be 
amended to require any employer of a security guard to file a detai1ed^report 
with the Department of State Police in any situation in v/hich a secur .̂.y 
guard is injured or killed, or when a member of the public is injured or
ki lied. This information should be compiled annually.

RECOMMENDATION 9 (c): Minimum training requirements in the use of deadly
"weapons should be adopted in the state licensing act for security guaros.

RECOMMENDATION 9 (d): The Legislature should review at greater length Lhe
implications of police officers working off-duty as security_guards, and 
should consider legislation which would regulate these practices.

RECOMMENDATION 10 (a): All law enforcement agencies should^be required^to pro-
vide the assistance of counselling and other support services to an ofiicer 
involved in a shooting. Counselling should be mandated for all officers who 
are involved in shooting incidents.

RECOMMENDATION 10 (b); All law .enforcement agencies should utilize valid and 
psychologica1 screen!ng as a pre-employment screening device.

RECOMMENDATION 11 (a): Department of Civil Rights staff should cooperate wi ..h
— community and law enforcement groups in increasing awareness of^the deadly 

force issue and in developing workable, uniform deadly force policies.

RECOMMENDATION 11 (b): Oeoartment staff should also assist in developing
community understanding and support for these deadly force policies and ror 
increased training and counselling services.

RECOMMENDATION 11 (c); Department staff should collect and compile media 
reports of all police shootings.