Federal Air Marshals “Shoot Don’t Shoot” Protocols Are Sure to Engender Debate

The Federal Air Marshal Service will carefully review the circumstances under which its officer(s) discharged his weapon at a passenger claiming to have a bomb on board an airliner preparing to get under way. Every law enforcement agency faced with a shooting by an officer conducts an in-depth investigation to determine not only whether the conduct was lawful but also how it might be improved in the future. Police agencies and their members as a rule do not take the killing of a suspect lightly regardless of the circumstances and at its conclusion they will issue a report of their findings.

The fact that a fatally wounded passenger may have been mentally ill, was unarmed and was not in fact carrying an explosive is irrelevant to the conduct of the LEO under the circumstances. And absent evidence to the contrary, the statements of the air marshals that the suspect claimed to have a bomb in his bag should be received as prima facie of a threat to life and limb of the marshals and others in the area. What will be determined with regard to the officers’ conduct will be governed by the laws pertaining to the use of deadly force by law enforcement officers and the regulations and guidelines covering the discharging of firearms under the circumstances by officers of the Federal Air Marshal Service. Should the marshals’ conduct be challenged in a future civil litigation, the marshal’s training and the policies of the agency will also be subject to review as well. For now at least, the marshals are entitled to and should be afforded public support for their action.

The killing of a suspect by a police officer in the line of duty is likely to leave an officer in a quandary over whether a lesser use of force might have been sufficient to terminate the perceived threat as a natural response to the taking of a life – and nothing more. After the public debate ends and the internal investigations are concluded, even an exonerated and decorated officer is likely to mentally replay the events over and over again. In this case, where there is no history of the use of deadly force in the Service, the officers may carry the additional burden of being the first to have to terminate a threat with a gun. These considerations do not diminish the terrible loss of an apparently innocent human life and the impact of that loss on his loved ones and upon society which daily authorizes sworn officers to use deadly force as necessary in the performance of their duties. It is precisely because we authorize the taking of a life in the name of the pubic good that we must be meticulous about reviewing every law enforcement-related shooting. Because of the unique circumstance of its involving a plane full of passengers, our sense of urgency since 911, and the ongoing war on terrorism, a broader review than might otherwise be given such an event will probably and justifiably occur.

Many are already asking if it is necessary to have armed federal air marshals on board our airliners, and if so should they not be on more if not all commercial flights? The reason for their presence may have changed since 911 with the fortifying of cockpit doors to prevent the possibility of hijacking. Preventing hijacking was why they were first introduced 1960’s in response to hijackings of American airliners to Cuba. However in the context of a world in which terrorism has become both common and international, the need for law enforcement on board airliners has been expanded. It is because we remain unable to screen explosives and other deadly weapons from commercial aircraft that air marshals continue to play a necessary role in responding to the threat of terrorism. How we employ their skills in carrying out that role may require new protocols. We need to make them more proactive in discovering explosives and other weapons before criminals and terrorists have a chance to use them. But any suggestion that we are safe to disband the air marshal program or disarm them is unrealistic given the continuing commercial aviation vulnerabilities.

Yesterday’s events should serve as a reminder of how sensitive we have become to the threat of terrorism and how little latitude there is for error. The magnitude of the harm that can be experienced from failing to act when there is probable cause to believe that an act of aviation terrorism is about to occur far out weighs the need for certainty when the choice is between terminating a reasonable risk and exposure to the detonation of an explosive. We must all recognize that our aviation security systems remain vulnerable, that terrorists retain the resolve to breach it and that passengers also have a duty to act responsibly if we want to benefit from the protections being provided by the law enforcement personnel who must remain ever vigilant to terrorists threats. We are all in this together and we share both the risks and the benefits accordingly.

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