Criminal Barricades vs. Non-Criminal Barricades
Most definitions of a “barricaded suspect” do not require that the subject actually barricaded a door but rather require that the subject 1) maintains a position of cover, concealment or advantage, 2) they refuse or ignore our commands, 3) they are believed to be armed, and 4) they present some risk to themselves or others. An important distinction for law enforcement to make is deciding whether it is a criminal barricade. The deciding factor is simple, yet its significance may not be as obvious. If the subject is wanted for an actual crime such as brandishing, hostage taking, domestic violence, etc. then the incident is a criminal barricade. If the subject is not wanted for a crime, and our only interest in him is that he qualifies to be taken into custody for a mental health evaluation, then the situation is a non-criminal barricade. As the jury stated in one court case, the response to non-criminal barricades involving suicidal subjects should be an “assist” response not an “assault response” When officers and on-scene incident commanders understand the nature of an incident as being non-criminal, it provides the proper context and shapes decision making.
There are several California court cases involving individual officers and their parent agencies being sued after the officers shot and, in some cases, killed a suicidal barricaded subject. These cases include Adams v. City of Fremont, Hayes v. County of San Diego and Sheehan v. City and County of San Francisco. It’s important to note that the officers involved in each of these cases were professionals trying to do their best under very tense and life-threatening circumstances. Unlike the lawyers who had years to dissect what the officers did, the officers and supervisors on scene didn’t have the luxury of unlimited time. With that said, we can and should try to learn from the past. One theme that rings constant through these and other cases like them is that we must constantly strive to be reasonable in our response. The courts continue to recognize the difficult task we have in responding to these incidents. They give officers a lot of latitude to choose from a variety of responses so long as they are within the realm of reasonableness. No courts have attempted to dictate specific tactics or protocols we must use. Instead they recognize reasonable actions like gathering available intelligence about a subject, using trained negotiators, and trying to defuse a situation with patience. Certainly, the task of defending ourselves in a lawsuit is made easier if we understand what would constitute a reasonable response. First, let’s look at what used to be the “industry standard” response to these incidents and the issues it caused.
The Tactics of the Past
In years past, even when dealing with non-criminal barricades, law enforcement officers would often force entry into a structure to take the suspect into custody. Perhaps after a period of negotiation (or not) officers would enter and aggress the subject. The suspect was armed so naturally officers would enter tactically with weapons drawn. Too often these incidents ended with the police shooting the subject. Although the purpose of the officers being there was to try to save the subject from killing himself, they ended up being the ones to kill him. The officers never responded to an armed suicidal person barricaded in their home wanting to kill the subject. Instead, they wanted to get him disarmed, get him to surrender and get him the help he needed. Unfortunately, they ended up making the situation worse. They didn’t do so out of design but instead because they either didn’t believe they had good tactical options or felt they were somehow bound by law or duty to attempt to save the subject from himself.
Thankfully, the law enforcement profession has evolved and began to understand better ways of dealing with the suicidal subjects involved in non-criminal barricades. Progressive officers and supervisors understand the relevant California Government Codes which provide liability protections if they don’t take suicidal subjects into custody. They understand how and when liability attaches and how they can shield themselves by simply demonstrating reasonableness. Most importantly, they have unshackled themselves from the burden of thinking they cannot leave under any circumstance. The officers and supervisors then are free to consider the “tactical withdrawal” as a viable option.
“Disengagement” a.k.a. “The Tactical Withdrawal” a.k.a. “Leaving”
Withdrawing from the scene is a tactic like any other which has its risk and benefits. There are situations which call for the application of this tactic and those which certainly would not. The most common incident in which a tactical withdrawal is probably not appropriate is when the situation is a criminal barricade involving a serious crime. For example, in the case of an armed suspect wanted for assault with a deadly weapon, who is barricaded in his home, deciding to tactically withdrawal would be unusual absent some other relevant circumstances. For that situation the time-tested conventional tactics of negotiation, chemical agents, and a SWAT team response would remain appropriate and the “industry standard.”
However, the tactical withdrawal may be appropriate when you have exhausted all other practical options in trying to convince the suicidal non-criminal to exit his home and surrender. The same could be said when for those barricades that are criminal in nature, but the crime doesn’t rise to the level that a protracted police response is deemed warranted. No matter the exact nature of the incident, the on-scene incident commander must decide if the risk of making entry outweighs the benefit and whether the prolonged commitment of resources is warranted.
Judge for yourself if the following response seems reasonable to you: A mother calls 911 to report receiving a call from her adult son who is suicidal. Her son told her he is inside his own home and going to kill himself with a knife. Officers respond to the subject’s home and surround it. The officers are appropriately armed to take the suspect into custody should he suddenly emerge from the home. The officers determine the subject has criminal history for brandishing a knife and has been taken on mental health holds several times in the past. Not wanting to close the distance with a person armed with a knife, the officers remain outside and behind cover or concealment. One officer gathers intelligence by first speaking with the mother who admits she herself cannot think of way to make him surrender. The officer then makes phone contact with the subject who states he has a steak knife and will stab himself if the police try to enter his home. A hostage negotiator is brought to the scene that spends the next 45 minutes building a rapport and trying to convince the suspect to surrender. The subject is erratic and delusional and eventually hangs up on the negotiator. The negotiator calls back several times and even uses a loud hailer at one point. Each call is logged so a record is kept of just how much effort is going into trying to help the subject.
After another 30 minutes without any response, the on- scene incident commander is at a crossroads of two viable options. He could order officers to force entry into the house or leave. He plays the tactical entry option out in his head and determines there are several risks in doing so including placing the officers within the effective distance of the suspect’s weapon. Consider the fact that making entry is precisely what the suspect said would precipitate him killing himself. Even at face value, it would seem counter-intuitive to do the very thing that the person we are trying to save said would make him kill himself. The incident commander decides it’s easily foreseeable that the entry could result in a violent confrontation with the subject. Remembering that he is dealing with a non-criminal situation he determines the risks outweigh the benefit. He then weighs the options of tactically withdrawing from the scene. He determines that while the subject may in fact kill himself when he leaves, he has not increased those dangers by the response so far and therefore determines he has not created a special liability. He determines that there is no way to safely save the subject from himself and directs his officers to leave. While leaving his officers are careful to answer the concerns of neighbors in a way that does not create the legal pitfall of “detrimental reliance.” Lastly, the subject’s mother is called. An officer explains to her that although they really want to help her son, there is no way to do it without placing him and the officers in extreme danger. She is upset but once the officer explains all the steps they took and that they really don’t want a confrontation with her son she at least understands their reasoning.
While the decision to leave in this fictional scenario could certainly be called into question, I think these actions would at least be seen as being reasonable. The decision to commence a tactical entry will always have its place when dealing with criminal barricades and probably even some non-criminal barricades when it can accomplished with acceptable risk. The tactical withdrawal from a non-criminal barricade has gained favor with progressive law enforcement agencies and will likely continue to become a more popular tactic. Walking away is never easy but it has its place in your tactical bag of tricks. As always, be sure to consult with your own legal counsel on matters of liability and risk management.
Decision making and the application of tactics like these are discussed in greater detail during the Savage Training Group course entitled “Response to the Non-Criminal Barricade” I’d like to invite you to register for a course near you or host the course at your agency. You’ll walk away with a deep understanding of liability and best practices as well as a collection of policies and an easy to follow decision making process.