Denver Cops Change Shooting-at-Moving-Vehicles Policy After Hernandez Decision

The car in which Jessie Hernandez died. Additional images and a video below.
The car in which Jessie Hernandez died. Additional images and a video below.
Denver District Attorney's Office

In our look inside the decision not to criminally charge the officers who killed Jessie Hernandez, seventeen, while she was behind the wheel of a stolen car this past January, we noted that Denver's Independent Monitor had questioned the Denver Police Department policy allowing cops to shoot into moving vehicles.

The smart money was on the DPD altering this approach in the wake of the no-charges announcement as a way of placating critics.

And once again, the smart money was right. Yesterday, members of the DPD received a memo announcing that this change was being made, effective immediately.

"Firearms shall not be discharged at a moving or fleeing vehicle unless deadly force is being used against the police officer or another person present by means other than a moving vehicle," states the memo, which is shared here.

That's good, says attorney Qusair Mohamedbhai, who represents Hernandez's family — but it didn't come in time to save Hernandez's life.

Jessie Hernandez.
Jessie Hernandez.
Facebook

As we noted in a January post, the DPD had previously released its rules in regard to shooting into moving vehicles. Here they are:

Moving vehicles

a. Firing at moving vehicles: Firing at a moving vehicle may have very little impact on stopping the vehicle. Disabling the driver may result in an uncontrolled vehicle, and the likelihood of injury to occupants of the vehicle (who may not be involved in the crime) may be increased when the vehicle is either out of control or shots are fired into the passenger compartment. An officer threatened by an oncoming vehicle shall, if feasible, move out of the way rather than discharging a firearm. Officer(s) shall not discharge a firearm at a moving vehicle or its occupant(s) in response to a threat posed solely by the vehicle unless the officer has an objectively reasonable belief that:

1. The vehicle or suspect poses an immediate threat of death or serious physical injury to the officer or another person and

2. The officer has no reasonable alternative course of action to prevent death or serious physical injury.

b. Firing from a moving vehicle: Accuracy may be severely impacted when firing from a moving vehicle, and firing from a moving vehicle may increase the risk of harm to officers or other citizens. Officers should not fire from a moving vehicle except in self defense or defense of another from what the officer reasonably believes to be the use or imminent use of deadly physical force.

(6) Above all, the safety of the public and the officer must be the overriding concern when the use of force is considered.

The Denver alley where the police shooting took place. Hernandez died in the Honda in the foreground.
The Denver alley where the police shooting took place. Hernandez died in the Honda in the foreground.
Denver District Attorney's Office

This last emphasis on public safety is contradicted to some degree by what's happened in Denver of late. A letter sent by Independent Monitor Nicholas Mitchell after Hernandez was killed is on view below in its entirety, but here's an excerpt:

While the language of this exception may appear narrow, in the last seven months, there have been four officer-involved shootings involving DPD officers shooting at moving vehicles, with several of the shootings involving multiple officers firing. Two of those shootings resulted in death, and one of them occurred in an area crowded by officers and civilians, raising significant potential concerns about officer and bystander safety.

The incident in a crowded area to which Mitchell refers involved Ryan Ronquillo, who was shot and killed by police in July 2014 at a funeral home, where he was planning to attend the viewing of a deceased friend. A number of mourners were nearby as shots rang out.

Ronquillo was also driving a stolen car, and police say he hit several vehicles before driving straight at them. The Denver District Attorney's Office ruled that the shooting of Ronquillo was justified, even though his friends and family considered what took place murder.

Independent Monitor Nicholas Mitchell.
Independent Monitor Nicholas Mitchell.
File photo

Mitchell's letter didn't take a position on the discharging-firearms-at-moving-vehicles policy; it's main purpose involved asking for Denver Police Chief Robert White's assistance "in getting access to the materials required" for an evaluation of the tactic. But he hardly shied away from raising potential negatives. Another excerpt:

It is difficult to shoot accurately into moving cars, and missed shots can hit bystanders and non-targets in a vehicle. In addition, if the driver of a moving vehicle that is travelling fast enough to threaten an officer is disabled or killed, the vehicle may go out out control, significantly increasing public peril. It is also potentially dangerous for officers. While DPD policy must empower officers to use any and all constitutionally sound tactics that will help them to remain safe, when an officer fires at a moving vehicle rather than attempting to get out of its path, the vehicle does not generally stop. Instead, a moving vehicle with a disabled driver will generally continue to travel towards the officer who may have failed to seize a short window of opportunity to get clear.

Additionally, Mitchell put special emphasis on the agencies and organizations that have turned against regulations allowing officers to fire into moving vehicles:

In assessing use of force policies, the United States Department of Justice ("DOJ") has recommended that a number of police departments, including those of Albuquerque, Detroit and Cleveland, adopt policies that prohibit shooting at moving vehicles when the vehicles are the only threat to officer safety. Similarly, the Police Executive Research Forum ("PERF"), a premier policing think-tank, has recommended to multiple law enforcement departments that they adopt full prohibitions on this tactic when the vehicle is the only threat. Many other police departments around the U.S., including Pittsburgh, Los Angeles and Miami Beach have chosen to fully prohibit this tactic, while others have not done so.

Attorney Qusair Mohamedbhai.
Attorney Qusair Mohamedbhai.

As Mitchell's statements suggest, the dangers of police officers shooting into moving vehicles were well known before the Hernandez incident. Expect this fact to be emphasized in a lawsuit against the city that Mohamedbhai expects to file on her family's behalf by year's end.

In the meantime, Mohamedbhai tells 7News, "Had these policies been in effect in January of 2015, Jessica Hernandez would be alive today."

The DPD's statement about the policy revision reads like so:

The Denver Police department has completed the review of their policy concerning Officers Discharging their Firearm(s) into firearm into moving vehicles.

Officers will receive updated training in conducting high risk stops and how to respond to moving vehicles. The training will include awareness of necessary tactics, pre-stop consideration, safely managing contact, approaching the vehicle after all visible occupants are secured, and post-stop considerations. They will do practice scenarios which will include how to “move or move to cover” respond appropriately when confronted with a car moving towards them. The training will be taught to patrol officers through their district corporals and training sergeants.

The policy and training is based on research conducted by several DPD command officers and best practices nationwide.

Look below to see the station's report on the latest developments, followed by the the DPD policy and the Independent Monitor's letter.

Send your story tips to the author, Michael Roberts.

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