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Topic four - The use of firearms
In addition to the general principles of necessity and proportionality, which apply to any use of force, specific provisions in both the 1979 Code of Conduct and the 1990 Basic Principles cover the use of firearms. The commentary on Article 3 of the 1979 Code of Conduct provides that: "Every effort should be made to exclude the use of firearms, especially against children. In general, firearms should not be used except when a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient to restrain or apprehend the suspected offender." Further guidance is provided in the 1990 Basic Principles with the relevant portion of Principle 9 reading as follows: "Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives."
This part of Principle 9 of the 1990 Basic Principles means that four scenarios may allow the use of firearms when less extreme means of force are insufficient:
- In defence against imminent threat of death or serious injury.
- To prevent a particularly serious crime involving grave threat to life.
- To enable a person resisting arrest to be arrested if he or she is about to commit a particularly serious crime that involves grave threat to life.
- To prevent a person resisting arrest from escaping where he or she is about to commit a particularly serious crime that involves grave threat to life.
These four scenarios each apply to the use of firearms to "stop" a criminal suspect, but not when the intent of the law enforcement official is to kill. In none of the scenarios is it lawful to use firearms merely to protect property (Casey-Maslen, 2017).
The default situation is the first of the four scenarios: where there is an imminent threat of death or serious injury, whether that is to a law enforcement official or to a member of the public. The threat posed by the suspect does not need to come from his or her brandishing of a firearm. Depending on the circumstances, a knife, an iron bar, a car being driven at someone, a potentially lethal chokehold, or even a baseball bat could be enough. In general, though, serious injury should probably be construed narrowly to mean potentially fatal injuries. The US Border Customs Police, for example, define a serious physical injury as one "which creates a substantial risk of death or which causes serious disfigurement, serious impairment of health or serious loss or impairment of the function of any bodily organ or structure or involves serious concussive impact to the head" (US Customs and Border Protection, 2014, p. 3, section D(3)(a)). The United Nations Special Rapporteur on extrajudicial, summary, or arbitrary executions has affirmed that an imminent or immediate threat should be considered "a matter of seconds, not hours" (UN Special Rapporteur on Summary Executions, 2014, para. 59).
Scenarios two to four as set out in Principle 9 of the 1990 Basic Principles concern a grave threat to life only (i.e. not also a threat of serious injury) and where use of firearms is necessary but where the threat is not necessarily imminent. Examples of such scenarios could be a serial killer escaping from a high security prison or an individual driving through a roadblock when a terrorist attack is feared. For example, in M. D. v. Turkey (1997), the European Commission on Human Rights considered the shooting of an escaping terrorist bombing suspect to be lawful action under Article 2(2)(b) of the 1950 European Convention on Human Rights: "to prevent the escape of a person lawfully detained". Such examples are exceptional, however, and concern only shooting to stop, not shooting to kill.
The act of shooting to kill is governed by a specific, heightened standard. According to the final sentence of Principle 9 of the 1990 Basic Principles, intentional lethal use of firearms "may only be made when strictly unavoidable in order to protect life". The United Nations Special Rapporteur on extrajudicial, summary, or arbitrary executions has termed this the "protect life" principle, whereby "a life may be taken intentionally only to save another life" (UN Special Rapporteur on Summary Executions, 2014, para. 70). Examples would be to stop a suicide or other bomber from detonating the bomb or a hostage-taker about to kill another. In this heightened standard, imminence is an integral part of the test of lawful use of force. If the law enforcement official opening fire does not honestly believe the suspect is about to pull the trigger of a firearm aimed at a hostage's head, or to detonate a bomb, then intentional lethal use of force cannot be said to be strictly unavoidable to protect life.
The Importance of training
The 1990 Basic Principles emphasize the importance of training of law enforcement officials. Principle 19 stipulates that governments and law enforcement agencies must ensure that all law enforcement officials are "provided with training and are tested in accordance with appropriate proficiency standards in the use of force". It further calls for law enforcement officials who carry firearms to be authorized to do so "only upon completion of special training in their use". Sometimes such training is limited to target shooting on the range. This has clear limitations. Scenario based training that is intended to review decision-making is critical to instilling the correct reflexes in law enforcement officials (Casey-Maslen, 2017, p. 386).
Next: Topic five - The use of "less-lethal" weapons
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