Justified Or Avoidable: When Cops Kill

Much as I’ve questioned some of the subjects of the New York Times’ Room for Debate, yesterday’s flavor raised the big question of whether police use deadly force too often, and offered some very thoughtful responses.   One debater, South Carolina law professor and former police officer Seth Stoughton, raised a deeply disconcerting point:

Every time a police shooting gets national attention, the difference in the conflicting attitudes that civilians and law enforcement have toward the use of force is glaring. That conflict drives much of the tension between police agencies and the communities they serve.

Indeed, as I’ve often noted, the First Rule of Policing is to make it home for dinner, a rule that every cop inherently applies in every interaction.

When cops evaluate a use-of-force incident, they ask whether it was justified, focusing on the legal rule set by the Supreme Court in the 1989 case Graham v. Connor. The Court held that officers may use force so long as it is “objectively reasonable.” To determine whether a particular action was objectively reasonable, the Court held, judges must view the situation through the deferential lens of “a reasonable officer on the scene.”

When civilians evaluate a use-of-force incident, they ask whether it was avoidable. They want to know whether the officer could have done something—anything—else.

The difference in perspective here is a critical observation.  While non-cops question whether it was necessary to kill, cops only ask whether they can get away with it.  From the legal point of view, the propriety of a kill isn’t whether the cop had one, or a hundred, ways to conclude the interaction without anyone getting hurt, but whether the use of force can be justified as being “objectively reasonable.”  In other words, the Supreme Court’s rule provides no incentive for police not to kill, as long as they can piece together some excuse for having done so.

The tragic shooting of Tamir Rice last November puts the difference between “justified” and “avoidable” in stark contrast. Officers responding to call that there was a “man with a gun” in a park drove to within about ten feet of their suspect. One officer jumped out of the car and, within two seconds, fatally shot the 12-year-old. Was it justified? Probably, if one narrowly considers the officers proximity to an apparently armed man. Was it avoidable? Almost certainly, when one acknowledges that the officers could have—and should have—parked at a safe distance and approached cautiously by using cover, concealment, and communication.

As Stoughton correctly notes, the killing of 12-year-old Tamir Rice was one that caused sharp conflict in the perception of whether it was lawful and proper.  As Stoughton explains with remarkable clarity, it was likely lawful, though hardly proper, assuming propriety is determined by police killing someone only when it cannot be avoided.

Stoughton goes on to present another paradigm for consideration of police use of force:

That’s not the right attitude for police. Our officers should be, must be, guardians, not warriors The goal of the Guardian isn’t to defeat an enemy, it is to protect the community to the extent possible, including the community member that is resisting the officer’s attempt to arrest them. For the guardian, the use of avoidable violence is a failure, even if it satisfies the legal standard.

The causes for this shift in attitude and purpose range from the militarization of police to the incentives offered by the Supreme Court’s ruling in Graham v. Connor, but all focus on the role that police perceive themselves as playing within society.  This is seen in the distinction between American and British police, and the number of people they find it necessary to kill:

The search for explanation, for understanding, in why so much violence happens at the hands of law enforcement gives rise to consideration of perspectives.  Stoughton provides us with two very real, and very useful, ways to think about how badly skewed the cops’ view of encounters has become, and why we suffer a regular stream of needless violence and death.

The latter paradigm, guardians versus warriors, is a cultural approach that can only change from within law enforcement.  Bring back Sheriff Andy of Mayberry.  Bring back the cop who wants everyone to make it home for dinner, not just him.

But the former paradigm, that created by the Supreme Court in Graham v. Connor, is entirely a legal incentive problem.  As long as the question is whether the cops can piece together vague excuses to justify their fear as being objectively reasonable, particularly in light of the great deference paid the police by the courts and public, there will be no incentive to not kill when the opportunity presents itself.

The background notion is that if the law places a heavier burden on police before pulling the trigger, they will hesitate when faced with a true threat and, in at least some instances, lose the race to survival.  The flip side, of course, is that they will shoot first, shoot prematurely.  They will shoot not because of an actual threat, but because of the fear of a potential threat, a huge step removed.  Yet, the ability to craft a viable excuse for fear is all that’s required as a matter of law to protect the cop from culpability for his kill.

Stoughton’s explanation offers some pretty clear ways to think about how both the law and cop culture have failed to protect the public from the police.  And as a former cop, it seems that he’s got a damn good foundation for his perspective.

29 thoughts on “Justified Or Avoidable: When Cops Kill

  1. Justice May

    Uh why was I linked to this dump bucket blog via WaPo. If I wanted to read an Attorney’s blatherings I would go to the county clerks office and read a brief. Shame when you went away you did not meet a depressed pilot.

    1. Ryan K

      The Internet is hard, what with all those links you have to click on. I trust you’ll figure it out eventually and confine yourself to corners of the Internet in line with your preferred reading habits. In the meantime, I’d direct you to a lovely blog discussing the mating habits of various species of fruit flies, but (sensitive to the dangers of being “linked to [a] dump bucket blog”) our resident overlord here altogether prohibits the posting of links.

  2. Justice May

    And yet you took the time to read it and post it and one of your clubhouse kids felt compelled to respond. do you circle jerk a the local Waffle house or IHOP I need to know so I don’t wear good shoes and step in your shit among other bodily waste when taking a piss.

    1. SHG Post author

      Of course. I take the time to read all the comments, from the brilliant to the lunatic, and I always post the illuminating ones. My clubhouse kids enjoy it. Then again, this is my blog, which is why I’m here. And you came back, because you care deeply. Don’t be shy, but you’re going to have to use a real email like everyone else. Sorry. And no more excrement talk. It’s not what we do here.

      Oops, I forgot to mention, use the reply button too.

      1. Sgt. Schultz

        Come on. One was funny. Now he’s trying too hard and just pathetic. Move on, counsellor.

  3. Leonard

    I believe Connor V Graham set the bar way too low and allows officers far too much latitude to utilize force in any situation. The common excuse is that officers have to make split second decisions. I have never accepted that argument, because if I have to make a decision in that manner, then I allowed myself to placed in that situation. The Tamir Rice tragedy is textbook. The police had already made the determination that a deadly threat existed, stopped their vehicle next to the boy and essentially created a situation where deadly force was their only option. Its the training they receive, the no hesitation targets, the attitude that every interactin the citizen is a threat and their inability to de-escalate encounters with a citizen. Only in the United States is it incumbent upon the citizen to ensure they leave an encounter with an officer safely. We can’t move too fast, don’t tense up, and God forbid it you reach near your waist. When did this happen? And why is this accepted by our society?

    1. SHG Post author

      There is a laundry list of justifications for the low bar of Graham v. Connor, all of which makes perfect sense if you (1) put the lives of police above those of citizens, and (2) hold an extraordinarily high regard for the good faith of police in the performance of their duty. Therein lies the problem with the Supreme Court’s low bar and high deference.

    2. David M.

      It’s strange that you began by calling a spade a spade, then abandoned that insight for the rest of your post. “Split-second decision” is just that, an excuse, gaseous nonsense supposed to make killing sound reasonable. This is about the police’s expansive idea of what constitutes a threat, not about their supposed failure to control events around them.

      1. SHG Post author

        As much as the “split second decision” is a common trope, used as a facile excuse, it’s not entirely without merit under the right situation. What happens, however, is that we “remember the rubric and forget the rationale,” so that actions become untethered from their justification and take on their own life independent of the occasional circumstance where the particular rationale applies.

        1. David M.

          You’re right. It might not be best to fight the push for unqualified acceptance with unqualified disagreement.

            1. John Barleycorn

              …and it only took two seconds to get from, “I told him a million times not to do that.” to “He scared me so much I had to kill him.”

    3. Bryan Gates

      Good on Stoughton for pointing out that having the legal justification to use force does not mean it is a good idea to use force. [Ed. Note: Balance deleted. This isn’t a post about Walter Scott.]

  4. Marc R

    One can blame a SCOTUS decision but that’s that lowest bar. There’s no debate a department can have a more strict policy and while the officer may avoid a murder charge he could definitely be fired and then sued without a department bought lawyer.
    SCOTUS is so far removed from the possibility of a police interaction they’ll never not give law enforcement the benefit of the doubt.
    [Ed. Note: Balance deleted.]

    1. SHG Post author

      Good point. Then again, how often do you see an organization rise above the lowest common denominator?

      1. Marc R

        Scotus says I can home school my kids but if they actually knew me personally it’d be a bad idea. So just because you can legally get away with something shouldn’t mean that’s your particular standard. There’s no way to get above the lowest common denominator and that’s why the leaders have to rise above it. You can’t legislate morality; you can set floors to acceptable legal behavior but being a good person…

        1. SHG Post author

          Organizations are not individuals, but have a dynamic and culture of their own. This is one of the problems a great many people have when attempting to understand why police behave as they do. Individual cops can be great guys, when they’re a friend, a neighbor, the father of the kid at school, etc.

          When they put on the uniform and act as a piece of a larger group, the one we call “the cops,” they adopt the culture of the group, which changes them from the good guy we know to the police officer we don’t. They embrace the organization, both as a matter of necessary loyalty (as they depend upon one another) and choice (as they want to be accepted and embraced by the group as a whole). Sometimes, it produces a totally different animal from the individual.

          1. Neil

            In the dark ages of guardian cops, was it necessary to understand the culture of the guardians to put the behavior of the individuals in perspective? Or is this study of culture only necessary now that a warrior culture has been adopted?

            1. SHG Post author

              I suspect the answer is that this is an outgrowth of warrior culture. Nobody had to teach Sheriff Andy not to kill when it could be avoided.

  5. MattS

    Even if you manage to change the question from was it justified to was it avoidable, nothing will change in actual practice in the field without consequences for the individual officer when the answer is NO.

  6. Hal

    So, I started to write to commend you on an especially well turned phrase “remember the rubric, but forget the rationale”. Then, because you had it in quotes, sought the original source… which appears to be you. Were you quoting yourself or is the source someone else and my search failed to turn up the original author?

    “Enquiring minds want to know.”

    1. SHG Post author

      While I use it with some frequency, I am not the creator of the phrase. But I can’t remember where I first saw it, and so I can’t cite to it. That said, I still feel constrained to put it in quotes to acknowledge that I’m just stealing the words of someone smarter.

  7. michelle brown

    I think the first rule of policing is to make sure that I make it home for dinner. Police are well paid for their job and a certain level risk is inherent. But, for the sake of argument we say that shouldn’t be the first rule of policing. At the very least, it should be:

    Make sure that everyone makes it home for dinner

      1. Patrick Maupin

        Careful — that sort of policy will have all sorts of knock-on effects. For starters, it’s gonna be a lot harder to coerce confessions if they have to wrap up at 5:30 so everybody can go home for dinner.

  8. Erin

    Thanks for this post. It articulates well thoughts I’ve had but had not managed to express clearly.

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