A bill proposed in the state House of Representatives that would restrict police from using deadly force to make an arrest is set to be voted on by committee tomorrow.
The bill, sponsored by four Republican representatives, would amend RSA 627:5, II, the law which outlines justifiable use of physical force by law enforcement. The bill is currently under review by a sub-committee of the House’s Criminal Justice and Public Safety Committee. The committee is expected to vote Wednesday on whether to table, amend, or pass the bill on to be debated by the entire House.
The amendment would keep intact allowing the use of deadly force to defend a police officer’s life or a third person when they reasonably believe someone is about to use deadly force themselves.
Currently, the law allows deadly force if police reasonably believes it’s necessary “to effect an arrest or prevent the escape from custody” of someone who they reasonably believe has committed a felony involving force or violence, is using a deadly weapon in attempting to escape or is likely to seriously endanger other people unless apprehended immediately.
The proposed amendment would remove the words “effect an arrest” from the statute.
Rep. Kurt Wuelper, who represents Strafford District 3, and is one of the sponsors of the bill, said the intent of the bill is to protect citizens. The change still allows the use of deadly force when lives are in danger, he said.
“If there is a threat or the policeman is in danger, all those other things are still in force,” Wuelper said in an interview Monday. “They just can’t use it just to effect an arrest.”
Wuelper said in particular, deadly force isn’t always appropriate when a suspect is running from police.
“I have no desire to put a police officer at risk, or a member of the public,” Wuelper said. “But I also don’t want someone to get killed for running away from something that might not be a violent crime.”
Rep. Chris True (R-Sandown), who represents Rockingham District 4, said in an interview Thursday that the intent of the legislation is not to remove the ability of police to use force entirely.
“My position is killing someone is not arresting them. Police, in responded to a scene where they come under fire, or are in a situation where they have to defend themselves or bystanders, they of course can – and must – still use force. But the law of the land should not be ‘Stop, or I’ll shoot and kill you.’ That’s not acceptable. It’s very difficult to arrest a dead person,” True said.
Rindge Police Chief Dan Anair said in an interview Monday that while he understands the intent of the amendment, it would “take another tool from law enforcement.”
“It’s limiting our capabilities,” Anair said. “It more a hindrance and working against us instead of with us on this one.”
Anair said the amendment could cause law enforcement to hesitate at a crucial moment. “That moment of pause is all it takes for the other person to have the upper hand,” Anair said. “Action beats reaction, all the time.”
“I agree that it is taking a tool away from law enforcement,” Peterborough Police Chief Scott Guinard said in an interview last week. “Leave the language as it is.”
Guinard said he also had concerns about the wording of the amendment, and that it could be interpreted differently than the intent when being read by members of the court.
Wuelper said at the initial hearing for the bill, law enforcement members voiced similar concerns about the change in the law impacting their ability to do the job, but said the protests were light on specifics.
“They never said anything about exactly how they would be inhibited by this. That’s not persuasive to me,” he said.
The bill would also update language in the bill to remove instances of “he” and replace it with “the officer” or “he or she”.
There have been 39 people killed or injured in police-involved shootings in the state since 2005.
In that same time frame, four New Hampshire police officers have been killed by gunshots in the line of duty.
Anair said police officers are well-trained on when it is and is not appropriate to use force. By law, police officers have a yearly refresher training on the law for at least four hours and go over scenarios and simulation training when discussing the proper use of force.
Lyndeborough Police Chief Rance Deware said the typical rule of practice is that an officer can use one level of force higher than what is being used on them. However, he said, there are a number of subjective things that can be taken into account, including previous interactions with the person, their size relative to the officer’s, what tools the officer has available and whether the suspect is known to own or carry a weapon.
Police are also subject to what is often called the “reasonableness standard,” established in the 1989 U.S. Supreme Court Case Graham vs. Connor. The court upheld that when using force to effect an arrest the officer’s actions it must be “objectively reasonable” that another officer in the same circumstances would have made the same choice.
Another case, Tennessee vs. Garner, in 1985, found that an officer may not use deadly force to prevent escape unless they believe the suspect poses a significant threat of death or injury to police or other civilians.
Laws can be stricter in individual states, Deware said, but all police officers are subject at least to that standard in all use of force cases.
Francestown police officer and former chief Fred Douglas said any gaps left by New Hampshire use of force legislation are covered by the federal laws, and police cover both in their training.
“It’s already illegal to do that,” Douglas said, of using lethal force on someone who is fleeing who doesn’t pose a threat. “I don’t know why they’re attempting to change this. Why are they re-inventing the wheel?”
Douglas said it’s not uncommon for police departments to have more restrictive policies than the state statute. For example, he said, in Francestown, policy is not to shoot at a moving vehicle. There may be situations where an officer is forced to take that step, Douglas said, if a person is attempting to actively use their vehicle as a weapon, but in most cases, there are too many potential unintended consequences.
Douglas has a more intimate knowledge of the thought process that goes into using deadly force than most career police officers in the state. He was involved in a lethal force incident in 1979, in Milford, where he started his policing career, when he responded to a domestic violence situation. He’d been on the job less than a year, he said. To this day, it’s the only time he’s ever had to fire his weapon on the job, he said.
“That’s something no one wants to go through. I have to live with every day,” Douglas said.
Douglas said the amendment isn’t correctly structured to achieve what its sponsors are aiming for, and that it leaves legal loopholes. Also, he said, New Hampshire has not had a history of inappropriate use of force to back up the need for a change in the law.
“That’s not to say there’s not issues in this profession,” Douglas said. “There is. But I don’t see it in New Hampshire. It’s not an easy job, but when I look back to the number of years I’ve worked in New Hampshire, you have some of the most professional police officers in the country. And I think that shows.”