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.
This is a great article. Police work is constantly evolving. Officers need to be able to evolve with police work. I have 14 years on the job. When I was trained, I was taught to go, go, go!!! Now, I responding and thinking to myself, what’s the rush. Time is kn my side.
Take your time and develop a plan. As the article mentions, walking away is very difficult. Officers want to help. That’s why we became officers. But sometimes the best help we can give is time and distance.
Donald, thank you for your comment. As you mentioned, we as modern police officers need to exploit the “time and distance” factors when we can. I’m very happy you and other officers like you are evolving how we respond to armed suicidal barricaded subjects.
You’ve read what I and Donald think, but how about you? How does your agency respond to suicidal barricaded subjects who refuse to exit?
I’d like to know why we spend so much time trying to “save” a criminal barricade instead of just letting them kill themselves. Case in point Selena. Admitted killer sitting in car threatening to kill herself. Why didn’t law enforcement just let it happen instead of all the hours talking her down. I’m sure there are many other cases.
That is a fair question Barbara. The reason that law enforcement officers spend so much time trying to take criminals who are also suicidal into custody is that our overarching mission is the preservation of life. Secondly, we try to take suspects into custody and avoid having them kill themselves so that he or she can be prosecuted. Law enforcement officers perform an investigative function which is separate from the prosecutorial function. That means, that even though we have probable cause to arrest the suspect, our mission is to take them into custody so they may have their day in court.
Great article. It is an interesting perspective given that law enforcement’s goal in their response is to protect the individual from self harm yet they can have the opposite outcome. I am interested in the exisiting case law. Would you kindly share the cases supporting this?
Thank you for your kind comment. There are a great number of cases that could be pertinent to the disengagement from the non-criminal barricade. Some to consider would be:
San Francisco v. Sheehan, U.S. Supreme Court, No. 13-1412
Adams v. City of Fremont (1998)
Doe v. City of Modesto CA5, F071675 (Cal. Ct. App. 2016) and the excellent article written about the case at https://cpoa.org/creating-special-relationship-can-create-liability/
Other cases that deal with the “special relationship” doctrine:
Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 191 Cal.Rptr. 704)
Carpenter v. City of Los Angeles (1991) 230 Cal.App.3d 923, 281 Cal.Rptr. 500)
Wallace v. City of Los Angeles (1993) 12 Cal.App.4th 1385, 16 Cal.Rptr.2d 113
McCorkle, supra, 70 Cal.2d 252, 74 Cal.Rptr. 389, 449 P.2d 453
(Mann, supra, 70 Cal.App.3d 773, 139 Cal.Rptr. 82
Great article. Do you have any case law or other information that supports a newer trend of a non-response to a request to assess or check the welfare of a person who is in mental crisis/suicidal and is otherwise not a threat to anyone else?
I’ve seen some training that encourages meeting with concerned family/friends away from the person in crisis and advising them to leave if they feel threatened, and call the person’s therapist, doctor, etc. instead.
Thanks for the inquiry Matt. Yes, there are some very specific laws that pertain to the decision to disengage. We’ll send them to you at the email address you provided. If you’d like to learn these laws and more, as well as receive some comprehensive training in tactics and best practices for these situations, please join us at an upcoming Response to the Non-Criminal Barricade course.
Greetings – I’m a little late to finding this particular article, but as I continue to research this subject I cannot seem to find opinions on what I think is a significant issue. If we apply the scenario used above but instead of the subject’s mother being the one calling for help, it is his wife who is standing outside on the sidewalk with their child and has no place to go. What is our obligation to ensuring they have a safe place to be? It would seem we should have a better answer than “we think you find some place to stay” as we disband.
Great question David. The short answer is there is no difference as far as legal obligations. But, it’s always a good idea for us to recognize a distinct differentiation between legal obligations and moral obligations. In examining the legal analysis, the essential question is do the officers have a legal duty to protect the subject’s wife and children from future harm? Absent a special relationship, they do not (South v. Maryland (1855), Warren v. District of Columbia (1981)). In some cases, liability begins not with the officers disengaging from the non-criminal barricade but from what an officer tells a family member (Doe v Modesto). Officers have to balance a feeling of wanting to help (a moral obligation) with the perils of perhaps overstepping and creating “detrimental reliance”.
The key to understanding the public duty doctrine, and what duty police officers have to protect and warn, is to analyze the myriad of cases on the books. For a detailed analysis of the relevant laws, an explanation of modern tactics and access to the best policies for non-criminal barricades, consider attending Response to the Non-Criminal Barricade: Disengagement and Special Relationships ®. We have an in-person and online versions of that course. Each teaches law enforcement officers the best way to handle these difficult incidents.
After searching extensively for an answer, to which I have yet to find, I found this article. Hopefully I can get maybe a bit more answer’s? So, in a situation where a suicidal armed subject is barricaded in a home and dozens of police, negotiators and SWAT arrive. Disregarding any personal moral obligations as police are to protect and also serve. Who is it that makes the call to end the standoff. Like one human’s life can end (peacefully or with self inflicted suicide or suicide by cop, doesn’t really matter with what I’m asking) at 4hrs into a standoff whereas another could be a 38hr standoff next person 8hrs. Who makes that call to say, I’m tired, it’s too cold, there’s no point, etc (all personal feelings opinions)? How is it legal for any human to play God with another human’s life regardless if they’re suicidal, have a criminal history, or model citizen. So I guess I’m ask7, is there a legal timeframe when someone can just wrap it up and it ends how it ends? Also, who decides on what type of tactics the armed forces use? Situation 1 gets robots, thermal imaging, under door camera’s situation 2 gets calls and flash bangs gasses and that’s that.
I just feel regardless of the subjects history we’re all human so why do some situations last 2hrs and minimal effort then other’s can go on for days using top technology.
Thank you for your inquiry Jakki. You asked several different questions, and I would summarize a response by saying that forward thinking law enforcement agencies should have policies and protocols in place to guide decision making during a crisis. Those policies should be based on an accurate understanding of the law and tactical operations. The decision to engage or disengage a barricaded suspect should be weighed on a variety of factors including a risk assessment, the crime at hand, and a careful weighing of the governmental interest in taking the person into custody versus that person’s right to privacy. There are a variety of complex issues at hand to be weighed by the incident commander and for that reason, each commander should undergo specialized training to include the Response to the Non-Criminal Barricade: Disengagement and Special Relationships ® course.
I’m actually happy to see this topic being discussed, and can’t believe I’m even writing this. It really hits home for me. My mom and dad were married for 38 years. They were a beautiful couple, great parents, and I really looked up to them and their relationship. We were an extremely close family. My dad’s youngest brother died by suicide when my dad was 37. In 2018, my dad was 63 years old. He had already been retired for 10 years, and my mom was set to retire in September. He had a few phlebotomies done for the first time in June/July/August, (then in August he was paranoid, but we didn’t know this until after) and in September my dad make the horrible mistake of bringing a gun to an argument with my mom. My mom ran and he ended up shooting her from a distance with bird shot, leaving her injured but able to run. My mom ran to a neighbour’s and received medical attention. She was released from hospital 6 hours later. My dad on the other hand, receded into the home and would remain there. These were the worst 18 hours of my life. From 6:30pm until sometime in the middle of the night, one police service managed to keep my dad on the phone. Then they decided they were tired and another police service from 3 hours away came in to replace them… negotiator/psychiatrist included (is this legal?). This felt like such a huge slap in the face to my family. The detectives who were handling the matter were not helpful in the least… “So if your dad comes out of there alive and you have to testify, who are you rooting for?”… or when my mom was in the hospital bed saying she just wants to give my dad a hug, “oh, that’s pretty nice for someone who was just shot”. They didn’t ask the right questions… they took a very criminal stance (which I do understand), but it was very much a mental health matter as well, and our family was silenced throughout the ordeal. I don’t know why I wanted to share this, but most likely to explain that family input can be useful in these situations, but the police force needs to do a better job asking questions to family members whose emotions are running extremely high or are in shock. I tried explaining that my dad was honestly a gentle soul, and he was not a violent man. I understood that you can’t send a human in there right now… but please, my dad LOVES my dog, send him in for a hug, PLEASE. My dad would have melted on the spot and probably came out. But he felt surrounded, judged, ashamed, and he probably thought my mom died and he would go to prison for life. Many people requested to speak to him, and my dad had at one point requested to speak to an uncle of mine, to no avail. Needless to say, my dad did not come out. 18 hours. I have residual PTSD symptoms when I think about the incident and the way it was handled. That’s why, to my surprise, this comment is truly coming from my heart for you to understand the other side of things, and lend a different view to the training behind situations like this.
@TrueStory, thank you for sharing this important perspective. I can’t imagine how difficult and painful that must have been for you. I hope, in a small way, you can find some comfort in knowing that many law enforcement professionals are embracing strategies designed to minimize violent confrontations with people who are suffering from mental illness and in crisis. Our “Response to the Non-Criminal Barricade: Disengagement and Special Relationships” trains law enforcement officers to understand the laws, tactics and policies that allow them to disengage from the crisis and seek a different outcome.