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NCIS and Deadly Force

So... there's been some discussion on a certain aspect of the end of Season 6 on NCIS in regards to deadly force. I'm putting this behind the cut to avoid spoilers for people...


Based on some discussions I've seen lately in regards to "was it right or wrong" for Tony to use a kill shot against Rivkin in the fight when he could have made an incapacitating shot instead (leg, arm, shoulder, etc.), I decided to put my Google searching skills to work and came across several NCIS documents before finding this little gem: Click Here to View Document

This document focuses specifically on USE OF DEADLY FORCE AND THE CARRYING OF FIREARMS BY PERSONNEL OF THE DEPARTMENT OF THE NAVY IN CONJUNCTION WITH LAW ENFORCEMENT, SECURITY DUTIES AND PERSONAL PROTECTION. I am not sure if this is the most recent issuance of this document as the latest date on it is August 27, 2003. However, I have enough experience with government contracts/pws/jargon/etc through work that I know things such as this don't vary often, if at all. So I'm pretty confident this is current or extremely close to current wording. Now, on with the key points of this document. (I will notate which pages what I copy/paste can be found on. I read the whole thing before doing this post...)

from pages 14 and 15 of PDF file
E2. ENCLOSURE 2
GUIDANCE ON USE OF DEADLY FORCE

E2.1.2. Deadly force is justified only under conditions of extreme necessity and when all three of the following circumstances are present:

E2.1.2.I. Lesser means have been exhausted, are unavailable, or cannot be reasonably employed;

E2.1.2.2. The risk of death or serious bodily harm to innocent persons is not significantly increased by use; and

E2.1.2.3. The purpose of its use is one or more of the following:

E2.1.2.3.1. Self-Defense and Defense of Others. When deadly force reasonably appears to be necessary against a hostile person(s) to protect law enforcement or security personnel who reasonablybelieve themselves or others to be in imminent danger of death or serious bodily harm by the hostile person(s).

E2.1.2.3.2. Assets Involving National Security. When deadly force reasonably appears necessary to prevent the actual theft or sabotage of assets vital to national security. DoD assets shall be specifically designated as "vital to national security" only when their loss, damage, or compromise would seriously jeopardize the fulfillment of a national defense mission. Examples include nuclear weapons; nuclear command, control, and communications facilities; and designated restricted areas containing strategic operational assets, sensitive codes, or special access programs.

E2.1.2.3.3. Assets Not Involving National Security But Inherently Dangerous To Others. When deadly force reasonably appears to be necessary to prevent the actual theft or sabotage of resources, such as operable weapons or ammunition, that are inherently dangerous to others; i.e., assets that, in the hands of an unauthorized individual, present a substantial potential danger of death or serious bodily harm to others. Examples include high-risk portable and lethal missiles, rockets, arms, ammunition, explosives, chemical agents, and special nuclear material.

E2.1.2.3.4. Serious Offenses Against Persons. When deadly force reasonably appears necessary to prevent the commission of a serious crime that involves imminent danger of death or serious bodily harm (for example, setting fire to an inhabited dwelling or sniping), including the defense of other persons, where deadly force is directed against the person threatening to commit the crime. Examples include murder, anned robbery, and aggravated assault.

E2.1.2.3.5. Protect Public Health or Safety. When deadly force reasonably appears to be necessary to prevent the destruction of public utilities or similar critical infrastructure vital to public health or safety, the damage to which, would create an imminent danger of death or serious bodily harm.

E2.1.2.3.6. Arrest or Apprehension. When deadly force reasonably appears to be necessary to arrest or apprehend a person who, there is probable cause to believe, has committed one of the serious offenses referred to in subparagraphs E2.1.2.3.2. through E2.1.2.3.5., above.

E2.1.2.3.7. Escape. When deadly force has been specifically authorized by the Heads of the DoD Components and reasonably appears to be necessary to prevent the escape of a prisoner, provided there is probable cause to believe that such person:

E2.1.2.3.7.l Has committed or attempted to commit one of the serious offenses referred to in subparagraphs E2.1.2.3 .2. through E2.1.2.3.5., above; and

E2.1.2.3.7.2 Would pose an imminent danger of death or serious bodily harm to law enforcement or security personnel or to any other person.


Also for my purposes in discussion below, from page 8 of the PDF File

3.6. Serious Bodily Harm. Does not include minor injuries, such as a black eye or a bloody nose, but does include fractured or dislocated bones, deep cuts, tom members of the body, serious damage to the internal organs, and other life-threatening injuries.


Now, let's break down what I copy/pasted above in regards to the Tony and Rivkin fight. First, were all three circumstances present to warrant Tony using deadly force?

  1. Lesser means have been exhausted, are unavailable, or cannot be reasonably employed - YES

    I would say that Tony exhausted lesser means in regards to hand-to-hand combat and was on the losing end. Other shots to in an attempt to incapacitate Rivkin without killing would have been risky for several reasons. Tony was already injured and at this point, his aim may not have been reliable. Rivkin is highly trained and taking out one arm or leg may not have stopped him. A kill shot is easier to make than an incapacitate shot.

  2. The risk of death or serious bodily harm to innocent persons is not significantly increased by use - YES

    Only Tony and Rivkin were in the apartment. Rivkin was not holding a hostage in the way like the situation where Gibbs shot through Lee to kill the bad guy. Unless he completely missed his shot and it went through a window and *somehow* managed to strike someone from the second (or whatever) floor... well... no one else was at risk if Tony used deadly force.

  3. The purpose of its use is one or more of the following - I will indicate the ones I feel fit for a YES

    Self-Defense and Defense of Others. When deadly force reasonably appears to be necessary against a hostile person(s) to protect law enforcement or security personnel who reasonablybelieve themselves or others to be in imminent danger of death or serious bodily harm by the hostile person(s). - YES

    Tony already qualified for serious bodily harm from the fight with Rivkin. Refer to but does include fractured or dislocated bones from the section on what constitutes serious bodily harm. This was self-defense on Tony's part against a superior fighter.

    Escape. When deadly force has been specifically authorized by the Heads of the DoD Components and reasonably appears to be necessary to prevent the escape of a prisoner, provided there is probable cause to believe that such person:
    E2.1.2.3.7.2 Would pose an imminent danger of death or serious bodily harm to law enforcement or security personnel or to any other person.
    - YES

    We know by this point that Rivkin has killed more than one person on US soil. He has been asked to leave the US by federal agents. He essentially poses an imminent danger to person or persons unknown because of who he is and what he does. So yes, Tony would have this as a justifiable reason.

    That is two from that section and only one was required. And I think a strong argument could be made for several of the other items that falls under this section.


Now... Since Tony met (in my opinion) the three requirements needed to exercise the use of deadly force, then he was fully justified in killing Rivkin. He followed protocol on that point.

The only point that I feel I might have slipped on was that he didn't take backup to Ziva's apartment. However, he went into that with the intention of just 'visiting' a co-worker. He was not aware that Rivkin would be there. So even that, I can forgive him on because he wasn't thinking in terms of 'potential dangerous situation' prior to him learning Rivkin was in the apartment.

Feel free to discuss away below and give me your opinions, even if they differ from my own. I love to see friendly debate... Just keep it respectful. :-)

Comments

( 43 Campfires — Leave a Comment )
donutsweeper
Aug. 30th, 2009 05:58 pm (UTC)
I never realized this was up for debate. Rivkin was trying to kill Tony. Rivkin HAS killed before- quite recently- and Tony knew it. With Tony injured and in no way at Rivkin's level at hand-to-hand he had to take Rivkin out.
kaylashay
Aug. 30th, 2009 06:00 pm (UTC)
Apparently not everyone got the "it's not up for debate" memo: http://community.livejournal.com/ncis_team/5629.html?thread=42237#t42237
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onlyonechoice
Aug. 30th, 2009 06:02 pm (UTC)
I <3 NCIS fans - I had no idea this was up for debate either.

Good on you for doing the research!
kaylashay
Aug. 30th, 2009 06:05 pm (UTC)
I never considered it up for debate, but I know others out there don't see things the same way. Plus I like researching things like this just to say, "Yes, he really was justified and not just by us saying so..."

I found some other good PDF documentation before coming across this one. Plus I figured out some of the best key phrases to use with google to find NCIS documentation. So that's a win in my book. :-)
sinkwriter
Aug. 30th, 2009 06:12 pm (UTC)
*nodding in agreement with all that you and donutsweeper pointed out*

In the moment of the shooting, Rivkin was advancing toward Tony with a sharp implement in his hand. There was no doubt in my mind by the look on Rivkin's face that he intended to inflict damage with that glass shard. He was going to stab Tony with it.

I too am surprised that there would be a debate about this. While Tony may not have handled everything perfectly (did he really think Rivkin would surrender to those handcuffs so easily?), I think the shooting was justified in the moment, and your listing of those rules proves that.

I love that you found that kind of detail, specific rules that back up Tony's actions, kaylashay. Thanks for listing them so clearly. *applauds your efforts*
kaylashay
Aug. 30th, 2009 06:17 pm (UTC)
You're welcome... :-)

I like being able to list things and say this is the reason why I feel the way I do.
avamclean
Aug. 30th, 2009 06:29 pm (UTC)
Interesting. I didn't realize there was a debate on this subjuct but there does seem to be a bit of Tony!hate in the fandom so I can understand. Though I never saw anything wrong with Tony's reaction to the situation and I think NCIS does usually do a decent job of following protocal and such.

Now Law and Order and Law and Order:SVU do not. *shakes head* They're lucky I adore Stabler or I would be shouting that they make that character turn in his badge every other week. ;)
kaylashay
Aug. 30th, 2009 06:50 pm (UTC)
Stabler is a good example of TV cop show taking liberties... Very much so.

And for NCIS, I think Tony follows the rules more than Gibbs and even McGee. McGee has never hesitated from early on to hack into things. Tony has entered a few homes without proper authority, but not nearly as much and to the level of McGee's hacking... and Gibbs... well... he has his own set of rules that trump NCIS rules, so...

But Tony is a cop. And he follows the rules even if he plays with the gray area from time to time.
sa3466996
Aug. 30th, 2009 06:58 pm (UTC)
I love how you always back up your pov with research and evidence. Puts others to shame.
kaylashay
Aug. 30th, 2009 07:11 pm (UTC)
Thanks... It's a throwback to arguing with teachers in grade/high school when they marked an answer wrong on a test and then I had to prove to the teach I was right.

Me and my brother and sister all did this at various points throughout school. We weren't even concerned with the grade, it was the principle of the thing. :-)
spae
Aug. 30th, 2009 07:21 pm (UTC)
Tony should not have entered the apartment - I was screaming at him from my chair, but he did not listen ...

Ah well, these deux ex machina ... yawn.

It makes me laugh how NO ONE is ever 'poor Rivkin, he and Ziva were so sweet together' because they were just so MEH. I was (and I am sure others were too) totally astounded by Ziva's turnabout into 'he was my one twu wuv' because I thought she had more chemistry with her desk.
kaylashay
Aug. 30th, 2009 07:26 pm (UTC)
Of anyone on the show, I think Ziva has the most chemistry with McGee... but I digress..

I think I recall saying something to Tony to the effect of: "Don't do it..."

Although, we all knew he would. It was inevitable. :-)

Now I want to write some crack!fic-ish with poor Rivkin. Explain why he had been drinking that night, etc... Make up some big sob sorry for him... *innocent look*
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dinozzo111
Aug. 30th, 2009 07:44 pm (UTC)
All I'll say is that from what I saw - Tony had done everything he possibly could and was totally justified in his actions...Tony was incapacitated with a broken arm, a drunk was coming at him with a knife or whatever it was, he'd tried talking to him, he warned him god knows how many times that he would be forced to shoot if Rivkin didn't stop - Rivkin chose to ignore the warnings intent on one thing killing our boy - a triple tap was the least he deserved!

and thanks for the document and explanation - made really interestig reading - your dedication to facts and info is quite awesome hon..and that's why we love ya! ;)
kaylashay
Aug. 30th, 2009 07:52 pm (UTC)
You're welcome on the documentation. It was fun looking it up and I now have some better search words to use on google to find NCIS documentation like that. :-)
nodazzle
Aug. 30th, 2009 09:41 pm (UTC)
I have no problems with Tony killing Rivkin. He was in the midst of getting his ass kicked by a known suspected terrorist. To Rivkin I say: Sorry 'bout yer luck!
kaylashay
Aug. 31st, 2009 12:23 am (UTC)
I don't think Rivkin even needs a 'sorry' ;-)

:-)
(no subject) - nodazzle - Aug. 31st, 2009 12:56 am (UTC) - Expand
shayasar
Aug. 30th, 2009 10:39 pm (UTC)
there really is a debate about that?? Huh, interesting.

The only thing you *maybe* can blame Tony for is going to Ziva's apartment without backup. But then, he was going to have a talk with his co-worker, with a team mate! It was not like he was planning on arresting her. And Gibbs had ordered him to stay on the case, so he was actually following orders when he went to talk to Ziva. How could he have known that Rivkin would be in her apartment? He had told him in no uncertain terms to leave DC and fly back to Israel.

No, Tony was confronted with an unexpected situation, he realised Rivkin was drunk and proceded carefully. He knew Rivkin was a trained Mossad officer and he pulled his weapon like he would with any other suspect he was trying to detain.

It was Rivkin who started the fight and from that point on Tony was fighting for his life. If Rivkin hadn't been drunk, Tony wouldn't have stood a chance (as much as this pains me to admit to :P).

Rivkin managed to seriously injure Tony and he was going to stab him with the glas shard. If Tony hadn't managed to get to his gun, he would be dead now. And he didn't pull the trigger as soon as he had the gun. No, he tried to get Rivkin to stop and only shot him in the last possible moment. Rivkin was already coming down on him and if he hadn't settled for kill shots, Rivkin would have stabbed him, even with bullets in his arms, shoulder, legs whatever...

Tony just did his job and got kicked in the ass for it by everyone... it's like he is the scapegoat for everything in season6 and everyone drops the shit on him... This really irks me...

And again... I ranted in your LJ *lol* sorry... :P
vamp926
Aug. 30th, 2009 11:25 pm (UTC)
Wow, and here I was sitting and thinking that people hated Ziva...

I agree with you 100%. Tony did what was right, and only a fool would say otherwise. Ziva is about 90% to blame for the mess (on no, imagine that, a Tiva fan being mad at Ziva).

Yup, you read correctly, I am a full blooded Tiva fan and I am so pissed at her right now. I cannot believe that she had the audacity to ask Gibbs to choose her over Tony, whether she was using it as a means to an end or not. That was unacceptable. Period.
kaylashay
Aug. 31st, 2009 12:22 am (UTC)
:-)

The bad thing is, I didn't want to hate/get mad/feel indifferent about Ziva. But they made me feel that way by her actions/reactions.
tucker_liz
Aug. 31st, 2009 12:10 am (UTC)
I liked this discussion and I believe your argument is valid.

However, I do believe this very document could point to Tony facing charges in the "Requiem" shootings. Take a gander at that and see if you agree with me.
kaylashay
Aug. 31st, 2009 12:19 am (UTC)
Actually, "Requiem" would be okay... Tony fired at two men who he already witnessed firing on another federal agent and a civilian. Had he not used deadly force on them and being alone, they could have escaped or causes problems in his rescue attempt of Gibbs and Maddie.

(1) Lesser means have been exhausted, are unavailable, or cannot be reasonably employed... Tony did not have time to deal with them in any other manner and do rescue.

(2) The risk of death or serious bodily harm to innocent persons is not significantly increased by use Gibbs and Maddie had gone off the pier, so there was no one else around for Tony to potentially shoot in his run.

(3) The purpose of its use is one or more of the following

Self-Defense and Defense of Others. & Escape. (for starters) This goes back to what I said above. If Tony hadn't have dealt with them in some manner, they could have caused problems for Tony, Gibbs and/or Maddie during the rescue. Plus, I think some of the other items would fit depending on all the bad things the bad guys had participated in at that point...

How do you see those shootings playing out that doesn't fit?
(no subject) - tucker_liz - Aug. 31st, 2009 12:30 am (UTC) - Expand
(no subject) - kaylashay - Aug. 31st, 2009 12:34 am (UTC) - Expand
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katie087
Aug. 31st, 2009 06:50 am (UTC)
I also agree that it was justified. I agree that his mistake was not having back up, and they addressed that on the show. Although he went there to visit he made the mistake of deciding to arrest Rivkin there and that's where things changed. They were just talking when Tony changed it from a visit to an arrest which I didn't think was a smart move. Still, it makes for great TV.
jagfanlj
Aug. 31st, 2009 11:50 am (UTC)
I've heard a few whiners, but most people I know feel that he was in emminent danger of being stabbed. Rivkin was not stopping, so taking him out was the only way to go.

PS:
I love prowling through the DoD maunals and procedures. They have documents available on everything, including recipes for the cooks!

I usually get them right off the DoD website, or from the BUPERS* online Reference Liabrary. BUPERS links to other resources as well.

These are all open to the public. Anything that is classified requires a logon/password. Generally, if you can access it, you can download it. Most are PDF, but sometimes there's an option for an html version.

*Bureau of Naval Personnel
captain_tibbs
Oct. 17th, 2009 02:57 pm (UTC)
Thank you so much kaylashay81! The effort you've gone to is much appreciated :-)
I like knowing the background proceedures myself for these types of situations, although I'm far too lazy to plod through much myself.
You are an invaluable resource to ficwriters, even those great procrastanators such as myself ;-)
( 43 Campfires — Leave a Comment )

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