Shooting measured against '89 ruling
By Timothy Hurley
Advertiser Maui County Bureau
News of Friday's fatal police shooting on Maui has stirred unpleasant memories for Ronald Becker, Chaminade University associate professor of criminology and criminal justice.
As a young lawman in Montana in 1975, he pursued a stolen car into a small town and was able to box the vehicle in, much like what police officers did in Pa'ia. Like Friday's situation, Becker got out of his car with his gun drawn, urging the suspect to stop, and when the driver accelerated toward him, Becker fired two shots.
The difference was that Becker missed. The stunned driver stopped the car, and Becker took him into custody.
To this day, Becker questions whether he really needed to fire his weapon.
"I could have just as easily stepped away from the vehicle. I've thought about it many times," he said.
Becker's shooting was justified under the law. In those days, police officers were allowed to shoot at any fleeing suspect who ignored their pleas to stop.
But no more. A 1985 U.S. Supreme Court ruling created a higher standard for use of deadly force: There must be a belief the suspect will cause serious bodily injury or death to the officer or to others.
"And whenever possible, you have to warn an individual, but that depends on whether time or circumstance allows that," Becker said.
Another Supreme Court ruling in 1989 recognized that many situations may appear to be more dangerous than they actually are. The court established a subjective standard allowing the police officer to act upon a reasonable belief of what's occurring rather than what was actually happening.
The details about the Maui case remained obscure yesterday, with police declining to answer questions until a news conference scheduled for this morning.
On Friday night, police said Lisa Tomita Kaina, 27, was driving a stolen 2004 Cadillac and trying to get away during a pursuit when she was shot and killed by an officer, whom they declined to name. Police said the woman was hit in the head by a single bullet, fired by an officer whose life was endangered as she reversed in his direction.
Some witnesses said the officer was not in immediate danger as she was boxed in by police units on the sidewalk fronting the Pa'ia branch of Bank of Hawai'i. They said it appeared the officer used excessive force.
Others said he may have saved not only his own life but others at the scene. The driver was ignoring pleas to stop, they said, while continuing to maneuver the Cadillac back and forth in an effort to escape.
If that is true, it may be enough to allow investigators from the Maui Police Department Criminal Investigation Unit and the Maui County Prosecutor's Office to say the use of deadly force was justified under the law.
In any case, Becker said it's likely the case will end up in civil court by family members seeking damages for wrongful death or violation of constitutional rights.
Family members of Kaina have said they are strongly considering litigation.
"Even in righteous shootings, families generally sue, and the police are often found to be civilly liable by a sympathetic jury," said Becker, who practiced law in Texas and did stints as a judge and prosecutor. "It's tough to find an impartial jury that doesn't come with an emotional package."
Whatever happens, the Maui officer who did the shooting and was placed on administrative leave likely is going through some difficult and very emotional times, he said.
"It's devastating in terms of your psyche. Nobody walks away from that unscathed," he said.
Becker said the Supreme Court has made it "infinitely more difficult" for police officers to do their jobs today, encouraging more car thefts and other crimes by individuals who know they can ignore pleas to stop.
"Why not run? You know you're not going to get hurt."
As for speculation about whether the Maui shooting was justified, Becker said it's easy to be a Monday morning quarterback and second guess what happened during the frantic final moments.
On the other hand, just because it's justified under the law doesn't mean you have to do it, Becker said.
Reach Timothy Hurley at thurley@honoluluadvertiser.com or (808) 244-4880.
