OFFICER DOWN : Slowly Developing Threats: The Kyle Dinkheller Incident

1_lead_od14_may_jun

OFFICER DOWN


Slowly Developing Threats: The Kyle Dinkheller Incident
By Brian McKenna


DESCRIPTION OF INCIDENT

Deputy Kyle Dinkheller was going to be a father again. Earlier in the day, his wife had learned she was pregnant with their second child but hadn’t had the chance to tell him yet. That would have to wait until he got home from work—but she would not get the chance. Andrew Brannan, a reclusive 50-year-old Vietnam veteran with a very short fuse, was about to make sure of that.

Dinkheller, just 22, had already earned the respect and friendship of everyone on the small sheriff’s department. Known for his hard work, enthusiasm, and good natured attitude, he was well liked by both his fellow deputies and the citizens he served. He was currently assigned to day shift on the Interstate Criminal Enforcement Team, a proactive traffic and drug interdiction unit, and he was in the last hour of his workday when he spotted Brannan’s Toyota pickup truck.
The pickup was obviously speeding as it approached him from the opposite direction on the interstate, a fact that was verified almost immediately by the LED reading of “98” on his moving radar unit. Dinkheller locked in the speed, quickly braked, and made a U-turn through the median as soon as the truck shot past him. He was still speeding to catch up when he saw the pickup exit the interstate and speed down an intersecting county highway. Dinkheller activated his roof lights and siren, called out his intent to stop the pickup, and followed it onto the county highway. Far ahead, he could see the small truck make a right turn onto a secondary road and keep going, still at a high rate of speed. He followed it for about another quarter mile and through a long curve. As he came out of the curve, he saw the truck slowing down, soon caught up, and pulled in behind it as it pulled over. It was a lonely place, cut off from the traffic on the interstate by a dense row of trees to the right.

Dinkheller stepped out of his patrol car, eyes fixed on Brannan, who seemed to be debating whether to get out of the truck. The driver’s door popped open a couple of inches, closed, opened again, this time farther, and closed again.

“Driver,” Dinkheller shouted, “Step back here to me!” his voice tinged with a hint of nervousness.
The door opened all the way as Brannan turned and said something to a midsized dog in the seat next to him. Brannan got out but just stood there in open non-compliance with Dinkheller’s order. Though not overtly threatening, Brannan’s silent resistance was unsettling. It was later learned that he had no arrest record, which was surprising considering the kind of man he was. He was a hothead with a violent streak who didn’t like anyone—especially a young inexperienced cop—telling him what to do.

“Come back here to me,” Dinkheller repeated.
Still, Brannan stayed put and Dinkheller repeated the order yet again. Brannan paused, pushed the door closed, walked to the back of the truck and stopped.
“How you doin’ today?” Dinkheller asked.

“Great,” Brannan responded, “how’re you doin’?”
“Good. Come on back here,” Dinkheller said. As Dinkheller spoke, Brannan slipped both hands into his coat pockets. Without pause, Dinkheller added the command, “and keep your hands out of your pockets!”

“Why?” Brannan demanded, his voice rising in both volume and pitch.

Now faced with the first sign of open defiance, Dinkheller responded by repeating the command, “Keep your hands outa your pockets, sir!”
Brannan took a half step backward and turned to his left. “Sir,” Dinkheller repeated in a louder voice.

Brannan turned back toward the deputy. “F__k you,” he spat out, “Goddamn it!”
Then, suddenly throwing his hands into the air, he started to back up into the street. “Here I am, shoot my f__kin’ ass,” he yelled as he launched into an ominous, wildly exaggerated jig.
“Here I am. Shoot me!” Brannan cried, leaping into the air with his arms flailing about as he continued his strange dance.

Dinkheller ordered the man to come over to him twice more but Brannan conspicuously ignored him, prompting the young deputy to call for assistance on his radio. This action elicited another sudden switch in Brannan’s behavior. Abandoning his dance as suddenly as he had begun it, the man charged Dinkheller. Dinkheller took a step back into a defensive stance, placed his hand on his collapsible baton, and commanded, “Sir, get back!”

Brannan stopped short, and defiantly screamed, “Who you callin’, moth-erf__ker?”
“Sir, get back now,” Dinkheller responded as he drew and extended the baton.
Brannan backed off. “Why don’t you f__kin’ kill me,” he roared as Dinkheller ordered him to get back yet again.

Brannan started forward a second time, his fists now clenched, amid Dinkheller’s repeated commands to back off. “I’m a Goddamned Vietnam combat veteran,” he snarled and moved forward to attack, “and I am not…”

Dinkheller swung the baton, delivering a strike to Brannan’s left thigh while again ordering him to get back. Brannan winced and stopped his advance; then backed away, his face ablaze with anger. He turned and walked rapidly to the rear of his truck, where he turned and glared back at Dinkheller before moving up to the cab. Clearly, he had made up his mind about something, and it didn’t look good. Dinkheller stayed next to his patrol car and placed another call for assistance.
Now at the driver’s door, Brannan turned toward Dinkheller again, pointed angrily at him and howled, “F__k you!”

“Sir, step back now,” Dinkheller responded.
Brannan opened the door, leaned inside, stood up again, shot a quick glance toward Dinkheller, and reached back into the cab. After feeling around inside the cab for a brief moment, Brannan leaned all the way in and began to manipulate something deep inside. Up to this point, Dinkheller had been repeatedly ordering Brannan to get back, but it was quickly becoming apparent that Brannan’s actions inside the cab were developing into a serious threat to Dinkheller’s safety. “Get outa the car now,” Dinkheller yelled; then repeated the command.
Brannan heard the orders, but refused to comply. He turned toward Dinkheller, screamed out a cursed, and then jabbed an angry finger toward the deputy while letting loose with a string of profanity. He turned back to the cab, reached inside, and grabbed something. Turning back toward Dinkheller, he kept the object out of view while continuing his angry outburst. Dinkheller responded by again ordering Brannan to come back to him, prompting an ominous one-word response from the man. “No!” Brennan screeched out, his voice cracking with anger.
“Step away from your vehicle,” Dinkheller commanded. Then he saw it! The object in Brannan’s hands was a rifle, its dark barrel angled above the back of the seat but pointing toward the passenger door.

“Put the gun down,” Dinkheller shouted, his voice now charged with anxiety as he backed up to the left-rear corner of his patrol car and took cover.

Just as he had been doing all along, Brannan went on in open defiance of Dinkheller’s verbal commands. He leaned back into the cab as Dinkheller called for assistance again, this time adding that the man had a gun. Brannan glanced back at Dinkheller and then turned his attention back to the rifle. He was manipulating the weapon in a way that wasn’t completely clear, but it appeared he was loading it. Dinkheller repeated the command to put the gun down. Brannan’s only response was to look back at him again and scream out another defiant, “No!”
“Put the gun down now,” Dinkheller demanded, only to have the command met with another string of profanity.

“Put the gun down!”
Brannan turned back to the cab and picked up the rifle, a 30 caliber M-1 carbine, as Dinkheller again ordered him to drop it. Without hesitation, Brannan turned toward the deputy and squatted next to the cab, rifle in hand. He bobbed around next to the truck, using quick peeks to try to locate Dinkheller, who was now moving to the right-rear fender of the patrol car for better cover.
Dinkheller had his Glock trained on the truck, waiting for a good shot. It soon came. Brannan rose above the bed of the truck, the M-1 at his shoulder. Dinkheller fired but missed as Brannan quickly ducked back down. Brannan soon appeared again, this time firing at Dinkheller as he popped up. Dinkheller responded with several shots of his own, but Brannan had already ducked out of view. Brannan rose, fired, and ducked down again as Dinkheller returned fire, still without effect.

Brannan bobbed up twice more, each time to a barrage of shots from Dinkheller’s Glock. But the slide on the deputy’s pistol soon locked back. As Dinkheller rushed to reload, Brannan’s head bobbed up yet again, barely rising above the side of the bed before dropping back down. When no shots came, he raised his head higher, and then moved toward the rear of the truck. He rounded the corner of the bed, holding the rifle at his hip as he moved, and rapidly crossed over to the right-front fender of the patrol car. He paused for just an instant, raised the gun to his shoulder, and opened fire (Figure 1).
2_od14_fig1_may_jun500x261

Dinkheller was now taking hits to his arms and legs as he hurriedly finished reloading and started to return fire. Brannan’s rifle blazed as he kept moving toward Dinkheller, pumping rounds into the valiant deputy as he fired. Fighting back doggedly, but seriously wounded and pounded unmercifully by the hailstorm of lead, Dinkheller missed with each desperate shot. Dinkheller was in great pain and bleeding profusely when Brannan finally stopped firing and backed off, his rifle now empty. Dinkheller’s gun had also been shot dry again, and he painfully reloaded as Brannan retreated to a position along the edge of the road near the back of the pickup truck.
Dinkheller had backed away from Brannan to a position near the left-rear corner of the patrol car. He rose up and fired another shot at Brannan, who had also just finished reloading. Brannan ducked from a near miss, and then put the gun to his shoulder and advanced at a fast pace to the driver’s side of the patrol car, firing rapidly as he moved. Dinkheller was taking still more hits, but bravely continued to shoot back (Figure 2).
3_od14_fig2_may_jun500x259

Brannan backed off to the front of the patrol car, and Dinkheller fired another round. This shot hit dead center, striking Brannan just below the sternum. The man flinched and grimaced slightly, but otherwise showed no effects from the wound. Regrettably, the bullet had hit at an angle, traversed his right torso at a shallow depth, and exited without striking any internal organs.

Brannan raised the rifle to his shoulder again, and moved back to the left side of the car, firing several shots as he advanced. So far, Deputy Dinkheller had been hit at least nine times in the legs, buttocks, arms, chest and head. Now severely weakened from severe trauma and blood loss,1 Dinkheller was virtually defenseless. Brannan stopped his advance, took deliberate aim at the gravely wounded deputy’s head, and pulled the trigger. The bullet entered Deputy Dinkheller’s right eye and penetrated his brain, killing him almost instantly (Figure 3).
4_od14_fig3_may_jun500x257
“Motherf__ker,” Brannan growled, and then turned, trotted back to his truck, and drove away.2


THE AFTERMATH

DISCUSSION & ANALYSIS

It is obvious that Deputy Dinkheller waited too long to employ deadly force, but it would be much too simplistic to assume that he hesitated just because he didn’t have the nerve to pull the trigger. There are a number of reasons why officers in situations like his might hesitate to shoot, and it would be unfair to him and dangerous for other officers in similar situations to ignore those possibilities. Think about how often we’ve seen officers repeatedly order armed offenders to put their guns down, or have been guilty of doing it ourselves. Unless we examine the reasons why officers so often make this mistake, how can we ever hope to correct it?
The following analysis will address this point in greater detail, as well as a number of other key lessons from this incident—lessons that can save lives. We owe it to Deputy Schoen and all our other fellow officers to learn as much as we can from this incident. Before you read the analysis, however, please review the following discussion questions and work through your own answers.


SIDEBAR 1


DISCUSSION QUESTIONS

  1. At what point did Deputy Dinkheller lose control of the situation? What led you to this conclusion? How important is command presence to the control of potentially violent encounters?
    See “Subject Control” section or click here for analysis
  2. It appears that Deputy Dinkheller struck Brannan once with his baton, but only once, and with too little force, which only angered Brannan further. What does this say about the amount of force that should be applied when physical force is necessary? Does indecisive and/or minimal force do anyone any favors?
    See “Application of Force” subsection or click herefor analysis
  3. Under what circumstances is it safe to allow a motorist to return to his vehicle?
    See “Permitting a Motorist to Return to His Vehicle” section or click here for analysis
  4. What factors might have caused Deputy Dinkheller to withhold fire as long as he did. What might cause other officers in similar situations to hesitate before using deadly force? What can be done to deal with this problem?
    See “Reluctance to Shoot” section or click here for analysis
  5. What role might the duration of this confrontation have played in Deputy Dinkheller’s reluctance to open fire? What can be done to deal with this problem?
    See “Slowly Developing Threats” section orclick here for analysis
  6. When armed with only a handgun in a confrontation with a suspect who is armed with a rifle, is it better to increase or decrease the distance between you and your adversary? Why?
    See “Safe Distance from Rifles” section or click here for analysis
  7. Deputy Dinkheller was under incredible stress, and it showed in his accuracy (one hit in 33 shots). He also appeared to have been using his patrol car for cover. What does this say about the importance of realistic firearms training?
    See “Firearms Training” section orclick here for analysis
  8. Brannan was not wanted and had not been involved in any criminal activity prior to the stop. It appears that he just did not like Deputy Dinkheller. What does this say about the cop killer mindset?
    See “Cop Killer Mindset” section or click here for analysis
  9. Deputy Dinkheller fought back until the very end. Discuss how this might have affected the outcome if the circumstances had not been weighed so heavily against him?
    See “Winning Mindset” section or click here for analysis

ANALYSIS
Subject Control
Deputy Dinkheller’s murder provides a sobering example of what can happen when an officer loses control of a situation. If Deputy Dinkheller
had decisively put a stop to Brannan’s aggressive actions early on, Brannan would never have been able to get to his rifle and this tragedy
would have been averted.

Command Presence
Subject control starts with proper command presence. People like Brannan have no respect for the uniform, and will test an officer if they detect any signs of uncertainty, fear or weakness. When Brannan refused to take his hands out of his pockets, a slight but discernable hint of uncertainty crept into Deputy Dinkheller’s voice (this change can be heard, though only faintly, in the video recording of the incident made by Deputy Dinkheller’s dash cam), and Brannan wasted no time picking up on it. He then tested the young deputy by blatantly refusing to comply with his commands and initiating his disconcerting dance in the street. When Deputy Dinkheller failed to take firm control at this point, Brannan pressed the issue by rushing him; then challenging him both verbally and physically.

Brannan later commented that he had attacked Deputy Dinkheller because Dinkheller had failed to show him proper respect. This is significant because Dinkheller had shown him the utmost courtesy and respect, which strongly indicates that Brannan saw Dinkheller’s courtesy as a distasteful sign of weakness. In addition, Brannan displayed an air of haughty superiority when talking about Deputy Dinkheller later. During his interrogation, he arrogantly commented that Dinkheller had been young and foolish, that he had clearly held the tactical advantage over him. Considering Brannan’s attitude toward Deputy Dinkheller, there is a good possibility that he would have acted differently if Dinkheller had used a firmer tone of voice, issued more explicit and forceful commands, and generally displayed a more commanding presence. A firm, no-nonsense demeanor conveys a level of confidence and power that will often discourage resistance. There are no guarantees, of course, but we should strive to display a proper command presence at all times.
Return to Question 1

Proper Application of Force
Later, when it became necessary to apply physical force, Deputy Dinkheller was able to force Brannan to back off, but he didn’t follow through. Instead of decisively putting a stop to Brannan’s attack, he delivered a single, ineffective baton strike, and then allowed Brannan to retreat. This only made matters much worse. Now infuriated, and completely unaffected by Deputy Dinkheller’s efforts to stop him, Brannan defiantly returned to his truck, retrieved his rifle, loaded it, and calmly opened fire.

Once committed to the use of a given force option, it is imperative to employ it decisively and forcefully, and to keep it up until the threat is either eliminated or it becomes necessary to employ another force option. Anything less is likely to create the impression of weakness or lack of commitment, or, as in this case, it may serve only to anger your opponent. Force should never be applied inappropriately or in excess, but it is essential to use enough force to decisively bring the situation under control.

It is also important to keep in mind that police officers are under no moral or legal obligation to meet actively aggressive assailants like Brannan on equal terms. Police officers have the authority to use a level of force that is one step higher on the force continuum than that being used against them. Perhaps more importantly, officers are not required to use the absolute minimum amount of force necessary to defend themselves. The courts recognize that it is not realistic to hold officers to such a strict and impractical standard. Instead, the standard is one of objective reasonableness. As long as the use of force is objectively reasonable under the circumstances, it is justifiable, even if it is later determined that a lower level of force might have been equally effective. Excessive force is inexcusable, but officers have an obligation to use whatever force is reasonably necessary to bring a violent encounter effectively under control before it escalates.
Return to Question 2

Permitting a Motorist to Return to His Vehicle
The confrontation took an ominous turn for the worse when Brannan returned unchecked to his truck. The most obvious consequence of this action was the fact that it enabled Brannan to retrieve his rifle, but it also created two other serious tactical problems. First, it put Brannan out of the Deputy Dinkheller’s reach, thereby limiting Deputy Dinkheller’s options for controlling him; and second, it allowed Brannan to reach a position that afforded him some cover next to the truck. These are tactical concerns that occur any time a motorist is permitted to return to his vehicle, whether he does so blatantly, as Brannan did, or more subtly, as more commonly occurs. Be especially wary if a motorist shows any signs of hostility, nervousness or deception.

It is often safer to keep the motorist inside his vehicle, but once he exits for any reason, don’t let him return until it is time for him to leave. Order him to stay where he is and deny any requests, no matter how seemingly innocent, to return to his vehicle. If he refuses to cooperate, most jurisdictions have laws that make it unlawful to interfere with an officer, disobey an officer’s lawful command, etc., so you can arrest him on one of those charges. Another option is to make a custodial arrest on the original traffic charge (if permitted in your jurisdiction). The important thing is to maintain control of the situation by placing the suspect under arrest as quickly as possible.

It is significant to note here that Brannan later commented that he would not have attacked Deputy Dinkheller if Dinkheller had used physical force to stop him from returning to the truck. He said he believed this would have put him at a disadvantage, leaving him no choice except to submit, but Dinkheller’s failure to apply physical force allowed him to maintain the tactical advantage.
Return to Question 3

Reluctance to Shoot
The most critical element of this case was the fact that Deputy Dinkheller waited too long to employ deadly force. But before we criticize him too harshly, we must admit that police officers have a dangerous tendency to issue repeated commands when confronting armed offenders. We’ve all seen it happen, most have done it ourselves, and cop reality shows are replete with examples of it. Why Deputy Dinkheller hesitated we will never know, but there are some very likely reasons that need to be examined:
The first is the fact that humans have an instinctive aversion to killing other human beings. Normal people don’t really want to take a human life unless absolutely necessary to defend themselves or others. It appears that this instinct is necessary for the preservation of the species, and is therefore very difficult to overcome. Since police officers are only human and are further constrained by their duty to preserve life when possible, it isn’t surprising that they so often withhold fire long after they are no longer required to do so.

Another likely reason why Deputy Dinkheller withheld fire so long may have been training. We often see instructors ignoring their trainees’ overuse of verbal commands during reality-based training, either because they don’t recognize how dangerous it is or possibly because they mistakenly believe it’s necessary. It is imperative that instructors are very clear on this matter, that they have the courage and know-how to make it clear to their students, and that they put forth the effort to do it right. While there may be good tactical reasons for issuing verbal commands in some cases (see “Slowly Developing Threats” section below), it is seldom legally necessary (except before using deadly force to prevent an escape, and then only when feasible3) and often very dangerous. Moreover, multiple verbal commands are unnecessary, and, by clearly showing an unwillingness to follow through on warnings, likely to encourage resistance and thus increase the danger.4
It is also very likely that Deputy Dinkheller hesitated because of civil liability concerns. Civil liability is a very real concern in today’s litigious society, and we also have a legal and moral obligation to use deadly force only when reasonable and necessary. Nevertheless, we have the right—and even the duty—to decisively put a stop to unlawful violence, even through the use of deadly force when necessary to defend lives. Fear of civil liability must never get in the way of our obligation to defend ourselves and others.

Deputy Dinkheller’s dash cam may also have contributed to his reluctance to fire. Considering the intensive scrutiny given to police use of deadly force by the courts, media and others, tape recordings can be very intimidating. The camera records just the cold, hard facts, including any mistakes the officer makes, no matter how minor or innocent, while ignoring the officer’s unique perceptions of the event. It also records events from the camera’s perspective, not the officer’s, which can sometimes distort the facts against the officer. These are valid concerns, but we must keep in mind that the camera also records the suspect’s hostile actions and other factors that are likely to support the officer’s decisions. In this case, for example, the recording clearly showed Brannan’s frighteningly outlandish behavior and open hostility to an extent that would have been very difficult to convey in mere words. It is also important to remember that the video will not be the sole piece of evidence. Other physical evidence is also likely to be present, and the officer’s police report still plays a crucial role in his defense. Regardless of whether a video recording exists or not, a detailed report that clearly articulates the entire encounter from the officer’s perspective and explains exactly why he felt threatened will still be the officer’s most valuable asset if accused of excessive force.
Hesitancy can also come from lack of confidence or uncertainty about the law and/or department policy regarding the use of deadly force. Practical knowledge is essential to overcoming this problem. It isn’t good enough to just be familiar with department policy and state law on the use of force. Officers must develop a solid, working knowledge of these things, and it must be in-depth enough to enable them to respond appropriately to a wide range of real-world situations, including those that may lead to hesitation.

Proper training will help officers develop this level of knowledge, thereby increasing their self-confidence and reducing their uncertainty, but it must consist of much more than classroom lectures and memory work. Presentations of actual case studies that involved questionable use of force, followed by in-depth interactive classroom discussions are one very effective way to develop the kind of mental flexibility needed to apply this knowledge in real-life situations. Discussion can be generated by calling on individual officers to comment verbally, or by requiring every student to submit their opinions in writing, but small-group exercises are usually the best. People tend to be more forthcoming with their ideas when in small groups, which leads to new ideas, more thoughtful discussion, and more thorough analyses.

Another valuable exercise is to thoroughly review and discuss the two landmark U.S. Supreme Court use-of-force decisions, Tennessee v Garner and Graham v Connor, and other key court decisions as well. This will encourage deep thought and help officers gain a better understanding of the way the courts view and analyze use of force by the police. For the many officers who don’t have access to this kind of training, the Internet can be an excellent alternative. A search for the two critical U.S. Supreme Court cases mentioned above is a good place to start. Read through them thoroughly, think about how and why the Court made the decisions it did, and then do the same with the other cases cited in these two decisions. Other important cases to review are Estate of Smith v. Silvas, Freeman v. Gore, Hunt v. County of Whitman, Krueger v. Fuhr, Payne v. Pauley, Samples v. Atlanta, Sharrar v. Felsing, Tom v. Voida, United States v. Dykes, and United States v. Koon.5 Any officer concerned about his safety, financial security, and legal well-being would be wise do this, and whatever else it takes to gain a thorough working knowledge of the law regarding the use of force.

Reality-based firearms training can also be used to improve decision making by requiring officers to make tough use-of-force decisions under stress. Scenarios that challenge observation skills (e.g., distinguishing between a cell phone and a handgun) aren’t good enough. Trainees should also be put in situations in which they must make challenging decisions under stress, like when to shoot a suspect who is loading a rifle but hasn’t pointed it at you, whether to shoot an armed man in the back who is running into an occupied school house, etc. These are the kinds of decisions officers sometimes have to make on the street, and the time to learn how to make them properly is during training, not after it’s too late.

Such reality-based training can also help identify various factors that may cause officers to either hesitate or overreact on the street, and will sometimes expose officers who are dangerously reluctant or overly eager to use deadly force. Once identified, these issues can be adequately addressed before they lead to tragedy on the street.
Appropriate use-of-force decision making under stress is too important to leave to chance. We owe it to our officers to make sure they receive the best possible training in this critical skill.
Return to Question 4

Slowly Developing Threats
There is one other very likely cause of Deputy Dinkheller’s hesitancy that is much less obvious, and more insidious, than any of the other causes we have mentioned so far—the slowly developing nature of Brannan’s attack.
Brannan didn’t attack all at once, or as suddenly as one would expect. This kind of slowly developing threat is unusual, but not as rare as it may seem. In one case, three Midwestern officers, all with their guns pointed at their adversary, were held at gunpoint by a suspect who approached them with a shotgun at port arms and then slowly lowered it into firing position. One of the officers later commented that he withheld fire because he was waiting until there was a direct threat to his safety or the safety of one of the other officers. Then, before he realized it, it was too late. The shotgun was pointed directly at his face and he feared that even a lethal hit could cause the suspect to flinch and fire his weapon. Fortunately, the incident ended with only the suspect being injured (he resisted arrest after throwing the gun down), but the threat was very similar to that faced by Deputy Dinkheller.
As further evidence of this threat, the author once included a scenario based on this case in a reality-based academy class, and every trainee who participated in the scenario withheld fire until it was too late. Similarly, when this case was discussed with a group of veteran officers, all but one stated that he would have waited until the suspect started to point the gun at him before he fired.

Apparently, the problem here is that we are conditioned, either through instinct, experience or both, to expect threats to appear suddenly. When the threat develops more slowly, it just doesn’t feel as threatening. Even worse, as the situation gradually unfolds, there is plenty of time for disbelief and doubts to creep in, to worry about possible legal consequences, and to wonder whether the situation has reached the point that lethal force is necessary. In short, a slowly developing threat gives you too much time to think. This can be exceedingly dangerous when facing a life threatening situation.

A key element in dealing with this kind of threat is to understand that it isn’t necessary to wait until a gun is pointed at you before shooting. Depending upon the circumstances, an imminent lethal threat can be present as soon as a suspect reaches for a weapon, and it is undoubtedly present as soon as he starts to draw one. In this case, however, the fact that Brannan took the time to load the rifle created a confusing gray area for Deputy Dinkheller. Nevertheless, it is clear that even with the apparent delay in the action, Brannan’s actions presented an imminent threat to Dinkheller’s life. Brannan had already displayed a great deal of hostility, and it was abundantly clear that he was not simply ignoring Dinkheller’s commands, but aggressively acting contrary to them. Once he grabbed the rifle and started to load the first round against Dinkheller’s commands, what other reasonable conclusion could be drawn from his actions than that he intended to shoot and possessed the means to do so? Who could reasonably question the need to shoot under such circumstances?

When confronting a slowly developing threat, it is absolutely essential to mentally draw a line in the sand that you will not allow your assailant to cross, and you must have the commitment and moral courage to shoot as soon as he starts to cross it. Nevertheless, it can be hard to determine where to draw that line under the stress of a life-threatening encounter. Fortunately, this process can be greatly simplified by issuing the proper verbal commands. As soon as you perceive a developing lethal threat, order the suspect not to move. The command “DON’T MOVE OR I’LL SHOOT!” leaves no room for doubt. It firmly establishes in your mind, as well as his, where the line has been drawn, and it makes it abundantly clear what will happen if he refuses to comply.

It also clearly communicates to any witnesses that you are in fear for your life and that you gave the suspect ample opportunity to avoid gunfire by complying with your command. If he chooses to move at that point, it is only reasonable to assume that he intends to attack, because no reasonable person would have any other reason to disobey. In addition, this simple command avoids the problem of having to try to convince him to drop his gun. Strangely enough, some people are so reluctant to drop their prized firearm that they will argue with you about it, which can create a sticky problem.
Once you have frozen the action by ordering him not to move, you can proceed with issuing commands that will further deescalate the danger without significant additional risk. These will vary depending upon the situation, but they will usually go something like this:
“Don’t move until I tell you to, and then do exactly what I say!”
“When I say, ‘Do it now,’ slowly raise both hands straight up into the air! Do it now!”
“When I say, ‘Do it now,’ turn away from me very slowly, and stop when your back is to me! Do it now!”
“When I say, ‘Do it now,’ slowly put the gun down! Do it now!”…
“When I say, ‘Do it now,’ slowly raise your hands straight into the air! Do it now!”
Again, you must be committed to take appropriate action if he makes any sudden moves or otherwise threatens your safety.
This tactic stops the action as soon as you perceive a threat, thereby avoiding the need to decide how far to let him go before you feel threatened enough to shoot. It is also applicable to just about every conceivable slowly developing threat, and it is simple and direct. As such, it will go a long way in helping officers safely handle this difficult and dangerous problem.6
Return to Question 5


Safe Distance from Rifles

When confronting an assailant who is armed with a rifle, there is a strong impulse to retreat to a position as far away as possible. This can be dangerous, because rifles have a far greater effective range than handguns. Consequently, if you increase the distance while armed with only a handgun, you severely limit your own ability to get hits while simultaneously enhancing your adversary’s ability to hit you. Conversely, when within effective handgun range, superior long-range accuracy no longer offers any real advantage, and speed becomes the more critical factor. When close enough to obtain reliable hits with your handgun, the handgun’s greater maneuverability is likely to give you the edge on speed, especially when in confined spaces and/or within contact range.
In this case, for example, if Deputy Dinkheller had moved in closer, he would have been in a good position to use pistol fire with great effect as soon as Brannan started to draw the rifle out of the cab. If he had gotten in even closer, he might have even been able to use non-lethal force to stop Brannan before Brannan got ahold of the rifle, which brings to mind another disadvantage of long guns. When within contact range, their length makes them hard to bring into firing position quickly, and the long barrel is easy to grab and/or deflect. Handguns, by contrast, can be quickly drawn and fired from the combat tuck position with little chance of being deflected or grabbed.
This suggestion goes counter to instinct to some extent, and is therefore offered with some reservations. Still, it makes a lot of sense from a tactical perspective, and should be seriously considered. Consideration also should be given to working the tactic into reality-based training scenarios and mental imagery exercises.
Return to Question 6

Firearms Training
Under the incredible stress of Brannan’s relentless attack, Deputy Dinkheller fired with great rapidity but very disappointing accuracy (one hit out of 33 shots). Outgunned as he was, it is easy to see why this happened, but there is no denying that he may well have survived if he had returned fire more effectively.

The importance of frequent and realistic range training, including stress courses, cannot be overemphasized. As officers develop ever-greater skill and confidence, they should be required to shoot increasingly more stressful courses of fire. The difficulty and stress level should not exceed their abilities to the point that it becomes frustrating or erodes their confidence, but it should be challenging enough to stretch their capabilities.

Officers should also be trained to engage targets that are behind cover. An adversary who is behind cover usually leaves parts of his body exposed at various times, either intentionally or unintentionally, and officers must be conditioned through training to capitalize on this. A hit to even a non-vital body part may distract, discourage or weaken the attacker, and several will multiply the effect. Officers should also be trained to anticipate their opponent’s movements behind cover, so they can be ready to shoot as soon as he, or any part of his body, emerges into their line of fire. Shooting at the suspect’s feet and ankles under vehicles and other barricades with gaps at ground level should also be taught (a technique that might well have benefited Deputy Dinkheller), including ricochet shooting. In addition, training should include a practical assessment of the resistance of various materials to different rounds, so officers will be aware of the possibility of shooting through cover made from those materials.

Similarly, officers should be trained in barricade shooting techniques. It appears from his wounds that Deputy Dinkheller used cover well enough to protect his head and torso for the most part, but he left his arms and legs at least partially exposed. Although it is seldom possible to stay behind cover without some exposure to incoming rounds, the appropriate barricade shooting techniques will maximize the protection afforded by various items of cover. Training should emphasize these techniques, but it should also teach officers to shoot accurately from various cover positions. Most officers are not used to firing from behind cover, and the required firing positions are often awkward and uncomfortable. It can be difficult to shoot accurately without practice, especially when using a position that minimizes the officer’s exposure to the fullest extent possible. It is not possible to determine with any certainty how much Deputy Dinkheller’s accuracy was affected by his use of the patrol car for cover, but we do know that he missed with every shot but one. Training in the use of cover will enable officers in similar circumstances to more effectively defend themselves.

Return to Question 7

Cop Killer Mindset
Besides his cold-bloodedness and contemptuous disregard for Deputy Dinkheller’s authority, Brannan displayed many of the other characteristics common to cop killers. He showed animal-like instincts with regard to Deputy Dinkheller’s reluctance to take action, and he readily capitalized on it. Also typical of a cop killer, Brannan gave very little or no thought to the long-term consequences of his actions. In his mind, Deputy Dinkheller simply made him angry, and that was enough. Without stopping to consider that he would probably never get by with it, he impulsively turned a minor traffic fine into a capital murder charge. This kind of childish, impulsive behavior without regard for long-term consequences is frequently found in violent offenders, and it makes them very dangerous. Awareness of this fact should make us more cautious, but it should also inspire us to renew our commitment to train hard, be prepared, and keep fighting no matter what.
Return to Question 8

Winning Mindset
Although Deputy Dinkheller has generally been described as an officer who tended to use a great deal of restraint in the use of force, he fought back with commendable courage and vigor when attacked. Despite the fact that he had suffered multiple gunshot wounds while facing a combat veteran with a superior weapon, he never gave up. He fought valiantly in the face of the desperate odds against him, and managed to deliver a center mass hit on his adversary even after receiving the majority of the wounds inflicted on him. Often, this kind of courage, determination and toughness will pull an officer through against perilous odds. It is deeply tragic that such was not the case here, but that does not change the fact that he faced his attacker with inspiring courage and commitment.
Return to Question 9

SUMMARY

  • Display proper command presence at all times.
  • When physical force is necessary, apply it decisively, with maximum force, and persistently until the threat is eliminated.
  • Never permit a motorist to return to his vehicle.
  • Do not allow fear of civil liability to get in the way of your obligation to justifiably defend yourself and others.
  • A practical understanding of the legal issues related to the use of force will help avoid hesitancy when force must be applied.
  • Officers are especially prone to hesitate when facing slowly developing lethal threats. When confronting such threats, it is essential to draw a
    line in the sand and be ready to shoot as soon as your adversary starts to cross it.
  • Proper verbal commands will help to alleviate the threat of slowly developing lethal threats. Start with the command, “DON’T MOVE OR I’LL SHOOT!”
  • Tactically, it is safer to decrease, rather than increase, the distance from a suspect with a rifle if you are armed with only a handgun.
  • Accuracy, stress shooting, and barricade shooting must be emphasized in firearms training.
  • It is important to keep in mind that violent offenders often act impulsively, with little regard for the long-term consequences of their actions.
  • Keep fighting, no matter what! 7

______________________________
Brian McKenna is a retired lieutenant from the Hazelwood (MO) Police Department, where he served in patrol, traffic, mobile reserve and training. He is a 32-year police veteran, with a strong background as a police trainer at both the recruit and in-service levels, and served his department as lead firearms instructor as well as in various other training functions. He is a state certified police instructor and a Certified Force Science Analyst, and holds a Master’s Degree in human resource development. Brian is a member of ILEETA and IALEFI, writes extensively on officer safety topics, and trains police officers nationwide in winning mindset and other topics related to officer safety. His book, Officer Down: Lessons from the Streets, is based upon this column and is only available for purchase on his website. Contact him at pmbrianod@charter.net or visit his Web site at www.we-training.com.

  1. Brannan v. Georgia, No. S01P1789, March 25, 2002, (1) paragraph 5; http://caselaw. Findalaw.com/ga-supreme-court/1197164. html.
  2. It isn’t possible to determine many of Deputy Dinkheller’s actions with certainty, because, although the incident was recorded on his dash cam, he was positioned out of camera view. The details recounted here are carefully developed assumptions made from the available evidence.
  3. Tennessee v Gardner 471 U.S. 1 (1985) requires the use of a verbal command prior to employing deadly force to prevent escape, but only “wherever feasible” against an escaping suspect, and then only “where feasible.”
  4. Since laws vary from jurisdiction to jurisdiction and are constantly changing and subject to interpretation by the courts, it is strongly recommended that officers, and especially their trainers, consult with legal counsel before making any blanket determination about any legal issue, including when and when not to use verbal commands.
  5. Wallentine, Ken. (Sep. 5, 2007) How to ensure use of force is “reasonable and necessary” and avoid claims of excessive force. PoliceOne.com, http://www.policeone.com/legal/articles/1271618-How-to-ensure-use-of-force-is-reasonable-and-necessary-and-avoid-claims-of-excessive-force/
  6. The opinions and advice given in this analysis are not legal opinion or legal advice. Readers are encouraged to seek counsel from legal professionals regarding any legal issues pertaining to the incidents recounted here and/or the author’s analyses of them.
  7. This article originally appeared the May/Jun 2003 issue of The Police Marksman. The incident description and analysis have been updated with new information for the new Police Marksman.

SIDEBAR 2

TELL US ABOUT IT!

The Police Marksman intends to run an “Officer Down” article by Brian in every issue. In order to find incidents that provide relevant case studies, we would like to draw from our largest available resource—you, the reader. If you have, or can obtain, factual information on actual incidents you think we can use, please contact Brian at:
7412 Lynn Grove Ct.
Hazelwood, MO 63042
E-mail: pmbrianod@charter.net
Tel. 314/921-6977 (call collect)
Cell: 314/941-2651

Back to Top