Training Written in Blood

Watching the fallout from the ICE agent shooting and killing the protestor in Minnesota has been painful.

ICE agents are federal law enforcement. There is no getting around that fact. At the end of the day, they are required by law to stop a person from committing a felony if it happens in front of them. They are also required to stop a person who has committed a felony with a deadly weapon. In certain circumstances, that means using deadly force on a suspect who is fleeing.

Hitting a law enforcement officer with a car, or attempting to, regardless of intent, will very likely be determined to be assaulting an officer with a deadly weapon while they were carrying out their duties.

To many, this will be cut and dry. In their eyes, it was egregious use of deadly force where it wasn’t needed. To others, it will be seen as preventing a violent person—who just attacked an officer with their car—from fleeing the scene to commit another violent assault.

When I first saw the footage, I had to wonder if it was another version of the Daniel Shaver case, where two officers, shouting contradictory instructions to a terrified person, shot and killed Shaver when he disobeyed the wrong one. Then the second-angle video came out, and we see the vehicle hit the officer, or brush them, depending on whom you ask. A third video shows the agent appearing to shuffle out of the way, dodging the car.

I watched the footage and thought about the death of Senior Chief Horne, who was killed by drug runners when they rammed his pursuit boat. Senior Chief Horne fell over the side and was killed when they ran over him. Vehicles have been ruled as deadly weapons by the courts for a long time now.

I think back to all the training I’ve repeated in the Coast Guard since 2011, when I reported to my first unit.

Every six months, Coast Guard law enforcement personnel must go through something called JUFE, Judgmental Use of Force Evaluation. It’s usually done right after we qualify on our small arms at the range. JUFE, pronounced “joo-fee” by Coasties, is a multi-phase training block that covers most of the scenarios where we might have to use deadly force. There are extensive slide presentations, walkthroughs with an evaluator, and a DVD playing out scenarios on a screen we have to interact with, and finally a series of evals with live actors with airsoft replica weapons.

The biggest updates since 2010 have mostly been the legalese that make up policies. I think the DVD is the same one I’ve been training on since I enlisted. It’s a series of short videos with suspects acting out various scenes, and the instructor can press 1, 2, 3, etc. to get the scene to follow certain plots. Some end with the suspect complying; others, the trainee must use deadly force and shout the appropriate warning in time. At some point, every trainee goes through the scene where they have to shoot a fleeing suspect in the back. The suspect has committed a felony with a deadly weapon and is fleeing, failing to heed a lawful order to stop, and is still holding their weapon.

I failed that last scenario the first time I went through it. I shouted the appropriate warning in time: “U.S. Coast Guard! Stop or you may be shot!” The instructor hit a button and the DVD shifted to the plot where the suspect dropped the weapon. I shot him before he could put it down.

My next time, they chose the plot where the suspect ran. He ignored the order to halt, and I shot him in the back. It was a failure because I never saw the weapon.

The live actor portion is the hardest because we never know what we’re walking into. We’ve all been through all the scenes, as trainees and actors, enough times we know which one it is by the props laying on the table. The unknown is how the actors have been instructed to behave. The instructor stands behind us giving hand signals to escalate or comply based on the trainee’s performance. It’s an even split on whether or not the scenario ends in use of force or compliance.

At FLETC Charleston we were wearing full kit belts with training versions of all our tools. I once saw a trainee grab a pair of handcuffs off the deck and use them like brass knuckles on the actor in the padded “red man” suit. Weapons of opportunity are fair game in life-or-death situations.

In the JUFE live actor sessions, it’s usually just the airsoft pistol and foam baton. I think it says something about our training that after two days at the range, and a day of DVD scenarios, I can draw and fire three shots in the time it takes the actors to “go active.” In the tight confines of the supply room where we train, putting those shots in the V of their blouse collar is surprisingly instinctive, even when they are moving. The airsoft pistols are so light that even the light recoil of the CO2-driven slide is enough to train target reacquisition on follow-up shots.

I think it also says something that we rarely reach for our batons or pepper spray.

For the Coast Guard, there are six deadly force situations:

1. In self-defense or defense of others
2. To effect a lawful arrest and to prevent escape
3. To protect property (government / military)
4. To protect hazardous materials or deadly weapons
5. In deadly force in vessel-on-vessel situations (ramming)
6. In deadly force and airspace security situations (shooting down attacking aircraft)

The Minnesota ICE shooting brings number 1 and 2 to my mind. It’s how I would have to justify deadly force in that situation. I say this without any bodycam footage, detailed audio recordings, or transcripts of what actually happened. If they were in the middle of a law enforcement operation, will they be able to articulate that the protestor was interfering and they were attempting to effect an arrest?

The ancient Greek poet Archilochus is credited with saying, “We don’t rise to the level of our expectations; we fall to the level of our training.” What was that ICE officer’s level of training? Drawing a weapon (unholstering) while giving clear task direction with consequences directed at the suspect is still considered level 1 and 2 under the Coast Guard’s use-of-force continuum.

Level 1: Officer Presence
Level 2: Verbal Commands; task direction with consequences directed at the suspect
Level 3: Control Techniques
Level 4: Aggressive Response Techniques
Level 5: Intermediate Weapons (less lethal)
Level 6: Deadly Force

I have to wonder why the ICE agent crossed in front of the vehicle. What in his training made that OK? Drawing the pistol is understandable; a vehicle is a weapon. I’ve drawn mine on multiple occasions while intercepting drug runners. On one occasion, I had to keep it pointed at them in alternating one-hour shifts with a team member until dawn. Thankfully, I’ve never had to pull the trigger. The third video to surface—the one showing the vehicle’s tire turned away from the agent—shows him drawing and firing as he dodges out of the way.

I’ve been lucky enough to have a civilian SWAT commander lead our JUFE training over the last two years. He always brings up two Supreme Court cases: Tennessee v. Garner:

“[U]nder the Fourth Amendment, when a law enforcement officer is pursuing a fleeing suspect, the officer may not use deadly force to prevent escape unless “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.””

And Graham v. Connor:

…the “reasonableness” of a seizure “requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake”. It acknowledged, “Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it”.

The Court said the reasonableness determination “is not capable of precise definition or mechanical application”. It then noted, however, the test’s “proper application requires careful attention to the facts and circumstances of each particular case.”

The short versions being: officers shouldn’t use deadly force unless they believe the suspect poses a significant threat to life, and that an officer’s use of force should not be judged with the clarity of hindsight but within the context of the information immediately available to the officer.

What context was the ICE agent dealing with? What did the protestor say or do? Did she make it clear that she was a protestor? Why didn’t the agents move a vehicle around to block her in? In the half second when he was still in front of her SUV as it started to roll forward, did he perceive it as an attempt on his life?

If I were in his shoes, would I have done it any differently?

I watch the videos and see propaganda from both sides scroll down my feeds. One side calling her an anti-ice domestic terrorist, the other lauding her bravery as a protestor. From the distance of my computer screen in balmy central Texas, I can only speculate at the details and context I’ll likely never know. The loss of life feels needless. I want to say the agent should have never drawn his weapon, and at the same time I want to tell the protestors to be smart about it—to look to Dr. Martin Luther King Jr. and what he achieved despite the violence from law enforcement.

Where do we draw the line on the First Amendment, on free speech and peaceable assembly? If we truly feel that the government is doing something evil but not illegal, how far are we obligated to take our protest? The protestor’s widow has admitted she was afraid her spouse would do something rash, and yet she let her go. Morally, does the wife bear some of the blame?

I keep looking at everyone trying to place blame, and I can’t help but circle back to the old Coast Guard saying: “Policy changes are written in blood.”

In our crusade for accountability, I wonder if we’ll lose the goal of preventing this from becoming the precedent instead of an outlier.

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K.C. Aud has made a career of being lucky and has managed to find something positive in nearly every poor decision he’s ever made, even if it was only a new perspective on how not to do something.

Enlisting in the U.S. Coast Guard in 2010 he became an Operations Specialist (radio and navigation) and did his first tour in Georgia guarding submarines from drunk fishermen. In 2014, tired of the heat and the bugs he transferred to a 210-foot medium endurance cutter in Washington state. The cutter then regularly deployed to the hot and buggy west coast of Central America to hunt down drug runners. Aboard USCGC Active he traveled 94,194 miles and personally handled enough cocaine to keep a small country high for a decade. Somewhere in there, he learned to write, if not spell.  

As the Voice of the Veteran Community, The Havok Journal seeks to publish a variety of perspectives on a number of sensitive subjects. Unless specifically noted otherwise, nothing we publish is an official point of view of The Havok Journal or any part of the U.S. government.