Criminal Justice Outcomes of Suicide by Cop Survivors

Epidemiology and Classification

SbC research concerns psychiatry, criminal and civil law, criminology, law enforcement, and crisis intervention methodology.¹⁷ The research has been salient due to increased scrutiny of police-community relations. The Washington Post, for example, has compiled about a thousand instances of police-related deaths annually since 2015.²⁰ Its numbers likely have been underestimated based on reliance on the National Vital Statistics System (NVSS). A reanalysis showed under-reporting of these fatalities among non-White citizens; about 30,000 versus about 17,000 in the NVSS sample from 1980 to 2018.²¹ Persons with mental illness are overrepresented among decedents in police-related fatalities, including SbCs.^22,23 These statistics do not capture nonlethal incidents.

Lack of uniform definition and reporting procedures limits availability of accurate data. SbC cases, for example, are usually called homicides, not suicides.¹⁹ The reporting of SbC fatalities influences public perception of safety and strength of police-community relationships.^16,19 Citizens understandably question why persons with mental illness are killed. The documentation of SbC as a form of suicide, however, has been criticized as post hoc justification for unscrupulous or inept police work, or an attempt to shift the blame from police to victim.^16,24 This is important, as increased scrutiny of police behavior focuses on thresholds for lethal force and immunity of police and municipalities.²⁵

The overall prevalence of SbC is unknown but considered rare.^26,27 Publicity surrounding it may lead to false assumptions about its frequency. Although the results of attempts are often deadly, there is little information on how often officers de-escalated the situation without physical injury to citizens. Studying officer-involved shootings in the United States, Patton and Fremouw¹⁹ concluded that at least 10 percent were SbC, with higher rates in hostage and barricade situations. Common features of SbC attempters include male sex, ages 20 to 40, psychiatric and arrest history, intoxication, and recent life trauma.¹⁹ Mohandie and colleagues¹⁸ examined original police records of 707 officer-involved shootings from 1998 to 2006 and determined that about one-third were SbC. Among those, 95 percent were male, and 80 percent had weapons, mostly firearms. Suicide notes were left in 14 percent of the cases, four mentioning SbC. In other instances, a wide range of clinical and descriptive indicia, including survivor statements, aided classification. A smaller study (N = 46)²⁸ found that 17 percent of SbC attempters had replica firearms, which would aid defendant officers in civil cases (e.g., “We didn’t know it was a toy”) but cut against a psychiatric defense among SbC survivors (e.g., “I knew they would shoot me if I held up something that looked like a real gun”). A more recent study examined 419 SbC cases from Los Angeles in which police used nonlethal force on citizens.²⁹ The typical SbC profile was male, average age 38, and likely to have a mental disorder. Eighty-nine percent verbalized suicidal intent.

SbC can be subtyped in several different ways. Mohandie and Meloy¹⁷ sorted SbC into two, nonexclusive categories based on motivation: “instrumental” (avoidance of incarceration) or “expressive” (venting rage or hopelessness). They found that all SbC instances, in addition to being psychodynamically complex and varied, contain a “meta-goal” of suicide, homicide-suicide, or “cry for help.” Keram and Farrell noted that “[c]ourts will be cautious in admitting evidence of the precipitator’s motive, plan, or intent” (Ref. 13, p 597), potentially prejudicing survivors’ criminal proceedings. Dewey and colleagues²⁷ determined that three groups of nonexclusive factors existed among 68 subjects: mental illness (depression with suicidal features, severe substance use), criminality (facing arrest or imprisonment), and domestic problems (violence and stressors). A rare variation of SbC is when death-row prisoners attempt to hasten their executions.³⁰ When abandoning appeals is not sufficient,³¹ they may attack corrections officers, hoping to be killed.³² Additional typologies were reviewed by Jordan and colleagues.²⁹ Although these schemas are useful in the study of depression and in suicide prevention, their utility in criminal courts usually is relegated to sentencing.

Relevance to Forensic Psychiatry Practice

SbC’s intersection with mental illness is important for forensic psychiatrists. Across SbC studies, 40 to 63 percent of individuals met criteria for at least one mental disorder, predominantly chronic depression, bipolar disorder, or schizophrenia.²⁷ In addition, 33 to 65 percent of individuals who completed SbC had a history of substance use disorders and more than 50 percent of individuals were intoxicated during the index incident. Survival of SbC attempts may vary with the degree of support from mental health professionals, perceived lethality of the threat to officers, officers’ training and individual characteristics, and nonlethal incapacitation of the citizen. Legal questions for expert witnesses range from criminal responsibility of the SbC survivor to the fitness for duty of officers traumatized by these incidents. The question of reasonableness of officers’ force would be a question for the jury aided by experts in police practices.

Despite the research literature noted, little is known about SbC survivors.^16,23 This is reflected in the rarity of requests for forensic psychiatric services, in the author’s experience, and in the dearth of legal decisions to guide jurisprudence. Intuitively, suicidal citizens with severe mental illness should not be held as blameworthy as those with obvious antisocial objectives, though their actions may be similarly unlawful. The laws permitting defendants to present evidence of mental disorder to negate mens rea or to mount an affirmative defense of legal insanity³³ apply poorly to SbC cases. Mental illness rarely negates criminal intent, even when severe,^34,35 because attempted SbC implies awareness that the behavior (pointing a gun or otherwise threatening violence) is provocative. Similarly, insanity is difficult to establish when a wrongful act was formulated to cause one’s death, even with an irrational basis. Statutes typically look only at the cognitive process behind the provocative act but may include a volitional test of the individual’s impulse control,³³ not regarding the nuanced dynamics of suicide.

Admissibility of Expert Evidence in SbC

Despite the status of SbC as a behavioral phenomenon, there are residual questions about its admissibility via psychiatric expert testimony. SbC is neither a cause of death nor a diagnosis that would support a defense of insanity in relation to provocation of police. The act of inducing reactive violence may undercut a cognitive definition of insanity (knowledge of wrongfulness) while not eliminating an insanity determination in jurisdictions that include volitional impairment.³³ Similarly, the manifest intent of SbC frustrates a defense of diminished capacity (negating specific intent). Yet, for forensic psychiatrists, it is intuitively reasonable that state of mind be considered in the calculus of survivors’ culpability, often relegating our role to aid mitigation in sentencing.

Courts are beginning to show interest in SbC. About 20 years ago, a U.K. case ruled for the first time that the killing of a citizen by an officer was suicide.³⁸ Addressing an inquest jury on the matter of police liability for homicide, the coroner told jurors to bear in mind “suicide by cop.” There was immediate protest from advocates for families of decedents, calling the ruling “perverse and dangerous” and suggesting a precedent for police to deflect attention from themselves.³⁸

A 2006 Florida appellate case³⁹ overturned a conviction for second-degree (felony) murder of Mr. Wagner, whose crime partner, Mr. Pucci, was shot and killed by an officer following armed robbery of a store. Because Mr. Pucci’s death was during their flight from police, Mr. Wagner was also charged with murder (homicide during a felony). The trial court rejected the defense’s proffer of expert testimony on SbC; there was no jury instruction on it and Mr. Wagner was found guilty. One focus of the appellate case was whether Mr. Wagner could have shielded himself from the homicide charge by asserting that Mr. Pucci provoked the officer’s actions. The appellate court ruled that Florida defendants have a right to present evidence and that a jury instruction was required. The court overturned the murder conviction and Mr. Wagner was sentenced to 15 years’ incarceration on the remaining charges.⁴⁰

Support for the admissibility of SbC testimony comes principally from civil cases. In Boyd v. City & County of San Francisco,⁴¹ the U.S. Court of Appeals for the Ninth Circuit held that the district court’s review of mental health expert testimony on SbC met the Daubert⁴² standard for scientific testimony. The testimony was admissible under Federal Rule of Evidence 702, in that it was relevant, scientifically sound, helpful to the fact finder, and not prejudicial.⁴³ Police shot and killed Mr. Boyd, a man with mental illness who attempted two separate kidnappings at gunpoint. His estate sued the City and County of San Francisco for wrongful death, claiming Mr. Boyd had been trying to surrender and that the police officers used excessive force. The defense presented expert witness testimony by a forensic psychiatrist who opined that Mr. Boyd, attempting SbC, had drawn police fire. The expert’s well researched and reasoned opinion permitted the syndromal description of SbC to withstand evidentiary scrutiny. The ruling has the potential to support arguments in civil actions for deprivation of rights under 42 U.S.C. § 1983.⁴⁴

The general applicability of the Boyd precedent is unknown both in civil rights cases against police and municipalities and in criminal cases against SbC survivors. In the criminal matters that follow, some survivor-defendants had an opportunity to argue for reduced culpability at trial, whereas others were denied, leading to appeals and postconviction relief petitions.

Insanity Defense

The insanity approach to SbC is not new. The English case of James Hadfield, decided in 1800, is an example of a man with brain injury and insane (psychotic) delusions.⁴⁵ Mr. Hadfield, a military veteran, shot at (or near) King George III to induce his own death for regicide. His underlying belief was that his being killed by others would create a thousand years of utopia. He survived and was acquitted by reason of insanity. In an early iteration of TJ, he was committed for psychiatric treatment. Despite this historical precedent, more recently, criminal courts have tended to reject defense arguments based on SbC, either outright or reserving them for sentencing.^46,–,48

One SbC survivor successfully used an insanity defense, and this clinical case was reported by Bresler and colleagues 20 years ago.²⁶ Like Mr. Hadfield, the defendant, Mr. P., sustained traumatic brain injury (car versus pedestrian), followed by significant changes in functional domains and volitional and cognitive deficits: “[he was] extremely impulsive, poorly planned, and organically disinhibited” (Ref. 26, p 4). After an angry exchange with his wife, he fled home with firearms. The police, alerted by his wife, pursued him into the woods. Mr. P. engaged them in verbal and shooting exchanges before capture. The authors concluded, “In situations such as this one in which it appears that the motivational and cognitive deficits are inseparable, a very liberal interpretation of the M’Naughten insanity standard is required for one to qualify for the defense” (Ref. 26, p 4). The authors did not indicate how the defense was fashioned, whether it was contested, or what the ultimate disposition was.

United States v. Israel⁴⁹ illustrates the difficulty harmonizing SbC, a cognitive test for insanity, and mitigation. In 2014, Kamau Alan Israel robbed a bank in Texas and engaged police in a high-speed chase. He had a history of schizophrenia with breakthrough psychotic episodes despite taking medications. After crashing, he tried carjacking another vehicle at gunpoint but later complied with police commands to drop his weapon. Mr. Israel was arrested and charged with bank robbery. Afterward, he began referencing an alter ego named “Damon,” and suggested that his actions were motivated by suicide. He robbed the bank hoping for SbC or being jailed, which he believed would allow him to escape from Damon. Mr. Israel was found competent to plead guilty to bank robbery and received the maximum sentence of 240 months in prison. The U.S. Court of Appeals for the Fifth Circuit denied him relief, citing that he did not take responsibility for trying to steal a car, even though he admitted to the bank robbery.

In 2017, Mr. Israel filed suit in U.S. District Court claiming counsel’s ineffectiveness in not providing an insanity defense and failing to present mitigating mental health evidence at sentencing. The district court rejected Mr. Israel’s appeal, citing that it was “disjointed” and that there was no evidence of mental disability missed by trial counsel.⁵⁰ Mr. Israel returned to the Fifth Circuit Court of Appeals, which had affirmed the sentence. The court said that an insanity defense would not likely have succeeded, as he attempted to evade capture by wearing a disguise and fleeing police and that he knew his actions would provoke police response; counsel was not ineffective.⁵¹

Diminished Capacity

Nebraska v. Churchich^52,53 underscores the problem of attacking intent as a defense tactic. In August 2012, Raymond L. Churchich, a man with bipolar disorder and polysubstance abuse, was in a standoff with Bellevue, Nebraska police. Barricaded in his parents’ basement with a shotgun, he fired shots through a window in the officers’ direction. Mr. Churchich text-messaged his parents and friends, indicating he wanted to die. He messaged a friend, “I’m leaving planet earth by a gauge to the heart,” and to his father, “The cops r here and its either them or me” (Ref. 52, p 2, spelling and punctuation in original). He also cursed police in words painted on his body. A SWAT team deployed pepper rounds into the residence, forcing Mr. Churchich outside.

Mr. Churchich pled not guilty to assaults and firearms charges. He was released on bond and assigned to Pretrial Services. The requirements included completion of an inpatient substance use program, 12-step program follow-up, counseling, and wearing both continuous alcohol-monitoring and location-monitoring devices. He returned to court two months later, after leaving the program, and was ordered to undergo evaluations of competency and sanity. Mr. Churchich was found competent to stand trial and counsel reserved the question of sanity for trial. In mid-2013, a plea agreement was reached, dropping four lesser felony charges in exchange for no-contest pleas on the others. He was not required, however, to give a factual basis for his plea because it was no contest. Sentencing was consecutive which, in the aggregate, could result in 27–60 years’ imprisonment.

Mr. Churchich filed an appeal citing, among other things, ineffective assistance of counsel for failing to withdraw the pleas after a psychological report suggested he could not form intent. The report became available after the plea hearing but before sentencing. The entirety of the appeal was denied in the 2014 decision.⁵² Mr. Churchich then appealed for postconviction relief to the same state court of appeals in 2018, this time pro se. He reiterated that trial counsel was ineffective, thus prejudicing the outcome. The opinion revealed details about reports by a psychologist and a psychiatrist.⁵³ The appellate court, however, concluded that Mr. Churchich acted intentionally, citing his text messages and the writings on his body; it affirmed the convictions and sentences.

In California v. Park,⁵⁴ a defendant failed to challenge mens rea (diminished actuality) because of the general-intent nature of the charges. In 2014, David Park was laid off from his job as a school custodian. Despondent, he sent his daughter away from their trailer home and binged on alcohol. He later texted his friend that he planned to get drunk enough to “get enough guts” to kill himself. His friend requested a police welfare check. When the police arrived, Mr. Park refused to come outside and shouted through the door, “I don’t believe in suicide, so I guess I’m just going to have to have you guys do it for me” (Ref. 54, p 5). Mr. Park then fired multiple rounds through the trailer’s walls, initiating a six-hour standoff. He was charged with four counts of assault on a police officer with a firearm. Mr. Park was initially found incompetent to stand trial and committed to Patton State Hospital, where psychotropic medications were forcibly administered. Prior to trial, the court agreed with the prosecutor to exclude evidence that Mr. Park had mental illness, since the evidence was relevant only to motive and not to his charges, which were general intent crimes not amenable to a diminished capacity analysis.

At trial, Mr. Park testified that he did not intentionally fire at police but instead shot at the floor of his trailer and at the bathtub to “let people know that I was serious [about suicide] and I really wanted to do this and they needed to go away” (Ref. 54, p 26). The jury found him guilty, and Mr. Park was sentenced to an aggregate term of about 33 years. Mr. Park appealed, arguing that the court violated his right to present a defense by excluding evidence of mental illness. The appellate court reiterated that assault with a firearm on an officer is a general intent offense. It only required proof that Mr. Park acted willfully and that he was aware of facts that would “lead a reasonable person to realize that his act, by its nature, would directly and probably result in the application of force to someone” (Ref. 54, p 34). Intent could not be negated by evidence of a defendant’s mental illness or voluntary intoxication.

In State of Washington v. Anya Montgomery,⁵⁵ there was confusion in the trial court about the use of diminished capacity and insanity defenses. Ms. Montgomery, convicted of attempted first-degree murder of her adoptive parents, was sentenced to 20 years’ imprisonment. Appealing, she alleged that the prosecutor misled the jury by misstating the law. The records revealed diagnoses of reactive attachment and posttraumatic stress disorders in childhood. When Ms. Montgomery was 12, her adoptive parents relinquished parental rights. Eleven years later, she revealed homicidal ideas against them; the incident occurred shortly thereafter. Under interrogation, Ms. Montgomery claimed the victims had sexually abused her, that she had returned to kill them, and that she was trying to induce SbC (not elaborated in the decision).

Confusion came when Ms. Montgomery proffered psychiatric testimony on diminished capacity. The witness stated that rather than intending to kill the victims, she was acting out a fantasy in which she went from victim to superhero. The expert, on cross-examination, acknowledged that Ms. Montgomery told the police of her intent to kill. Then the following exchange took place between prosecutor and witness:Q: … I mean, she understood that what she was going over there to do was considered to be illegal, but your opinion is that she didn’t intend to actually assault or attempt to kill anybody. Correct?A: That’s correct. There are two different psycho legal [sic] issues. I’m not saying she was not guilty by reason of insanity. I’m saying she lacked capacity to form intent. Those are two different issues with different standards.Q: All right. That's not what I asked, and now that you’ve brought up the issue of insanity, you are not opining that she was insane at the time legally. Correct?A: That’s correct.Q: Okay. But the point being, again, that her awareness that her—what she was doing was illegal is not consistent with not intending to do anything illegal; i.e., kill the [victims]. Correct?A: That’s not correct. (Ref. 55, p 2–3; Google Scholar pagination).

The prosecutor later argued that the expert’s opinion was internally inconsistent. The appellate court ruled that the jury was told to follow the court’s charge and that ambiguity surrounding the expert’s testimony would not have affected the outcome. The conviction was affirmed.

Problem-Solving Court

The New York Times⁵⁶ reported on the following SbC attempt by a veteran who avoided attempted murder charges. Staff Sgt. Brad Eifert had been deployed to Iraq and in 2006 worked as an Army recruiter in Michigan. Troubled by PTSD symptoms, he self-medicated with alcohol and made two suicide attempts in 2010. In August 2010, two coworkers planned to take him for psychiatric evaluation. Mr. Eifert escaped to his home, where he grabbed three guns and fired them into the woods. He later dropped them and ran toward waiting police officers shouting, “Shoot me! Shoot me! Shoot me!” The officers subdued him with a Taser and arrested him.

Mr. Eifert faced five counts of assault with intent to murder the officers, each carrying a potential life sentence. Judge Jordan of Ingham County District Court, who had started a veterans’ court in East Lansing, diverted the case to such a venue. This court was not usually open to defendants charged with firearms or violence crimes. The prosecutor reasoned that Mr. Eifert’s emotional difficulties warranted leniency and the police officers agreed to withdraw charges of assault with intent to murder. Mr. Eifert pled guilty to a single charge of carrying a weapon with unlawful intent within the veterans’ court program. By adhering to mental health and substance use treatment and supervision, the charge would be dismissed or reduced to a misdemeanor.

Mitigation

In Washington v. Burton,⁵⁷ Craig Burton, a military man with firearms training, tried to avoid criminal consequences after surviving SbC. After his honorable discharge, he became depressed in 2015 and received paroxetine. Meanwhile, his wife was divorcing him, and he was overwhelmed. At the time of the incident, he felt suicidal, was drinking beer, and had a loaded handgun. His mother-in-law called police; 11 officers came. Three of them feared Mr. Burton would shoot them because he fired shots into the trees saying, “Do it.” Mr. Burton came out with the gun but did not point it. When an officer ordered him to drop the gun and he refused, the officer shot him once in the abdomen. On the way to the hospital, “Burton told Officer Wells that he wished police officers had killed him and he was glad he injured no one” (Ref. 57, p 7).

Mr. Burton’s charges included three counts of first-degree assault with intent to inflict great bodily harm; each carried a firearms enhancement. He opted for a bench trial and did not file for diminished capacity. At trial, Mr. Burton testified that his sole purpose was suicide. A psychiatrist testified, not about SbC, but that the suicidal ideation was linked to paroxetine effects.

The trial judge, impressed that Mr. Burton never intended to shoot the officers, only to frighten them, noted that his provocation was intentional. Mr. Burton asked for special consideration in sentencing, “which applies when the defendant suffers from an impaired capacity to appreciate the wrongfulness of his conduct or to conform his conduct to lawful requirements” (Ref. 57, p 14). He was sentenced to about 10 years, largely for firearms offenses. The trial judge’s frustration over sentencing guidelines was palpable: “I’m confident I don’t have any reasonable basis that’s been offered to mitigate below the standard range. I just don’t have that in front of me” (Ref. 76, p 15). Mr. Burton appealed the sentence. The appellate court disagreed with the trial judge over discretion and remanded Mr. Burton’s case for resentencing; there is no published opinion on that aspect of the case. The appellate decision admitted regret over its perceived impotence, suggesting only a reduction in penalty.