It is a US Supreme Court precedent based upon The Constitution. If you read the case, the reason the doctrine exist is that police aren’t going to be asked to wait until they are shot or stabbed or punched or otherwise hurt—to wait until the threat materializes and causes physical harm to them. They are privileged by The Constitution to use deadly force in those situations where see a threat to them.
— Judge John P. O’Donnell, Politico, June 12, 2015
Up to now, the discussion out of Ohio had been that Judge O’Donnell was one of those “academic” judges, smart but still a judge.
As for his acquittal after a bench trial of Cleveland Police Officer Michael Brelo for killing Timothy Russell and Melissa Williams after leaping on the hood of their car and firing 15 rounds directly through the windshield into their bodies, the locals took issue with Judge O’Donnell’s “but for” analysis only because it had never before appeared in Ohio law and was completely novel and without precedent. Inside baseball details.
But it’s always a curiosity when a judge takes to the media, post controversial ruling, to explain himself. That’s what Judge O’Donnell appears to have done here, or at least the only reason Politico chose to interview him. Absent Brelo, no one would give a damn what Judge O’Donnell thought.
Having chosen to be interviewed, however, he’s now on the hook for what he said, and he said this:
[Cops] are privileged by The Constitution to use deadly force in those situations where see a threat to them.
Given his reputation for being an academic judge, and in light of mine for being a legal realist, I thought it prudent to parse the United States Constitution to see if maybe I missed something. Nope. It’s not there. There isn’t a clause in the Constitution that says this, or anything of the sort.
In the past, there have been rather clear assertions to the contrary, coming from former police officers no less.
As the authors note, law enforcement involves a heaping dose of “law.” While police have an unfortunate tendency to both be simultaneously ignorant of law, while claiming that their every whim is the law and citizens either comply or suffer the consequences, there is actual law that has been almost entirely ignored by police.
What the authors fail to note, of course, is that judges have been overwhelmingly complicit in the “officer safety”-trumps-law-no-matter-what meme. Yet, there is no constitutional authority for such a view.
How then can Judge O’Donnell’s claim that it wasn’t him, but the Constitution, that “privileges” cops to use deadly force when they see a threat? Clearly, it can’t be done. It’s either in there or it isn’t.
Then Judge O’Donnell goes on to note that there may be questions as to whether it’s good policy to “privilege” cops to kill whenever they feel threatened, where he tries to demur:
Whether that is good policy or not, that is for others to decide. I know what the law is, however, and I had to follow it in this case. But the opposite policy would be to not allow police to use deadly force until deadly force is actually used on the officer. If the government wants to institute that policy, I suppose they are welcome to, but we can all see the problems with doing that.
First, if this is a matter of constitutional mandate, then it is not a public policy concern. There are often choices that simply must be made, to favor one interest or another because they will necessarily clash. Is the need to catch criminals more important than the need to protect people’s privacy from the police? That would be decided by the Fourth Amendment, requiring a warrant upon probable cause as determined by a neutral magistrate, and as much as we might like cops being able to get the bad guys, they must still get a warrant first (with the exception of most circumstances that have come before courts).
Nowhere in the Constitution are the police mentioned, though there is the “necessary and proper” clause in Section 8, which authorizes Congress to make laws to carry out its authorized functions, but nowhere in those functions is there talk of cops killing citizens. And it certainly doesn’t say anything about cops killing citizens upon any feeling of threat, in advance of an actual, imminent threat of deadly force, just to be safe.
Judge O’Donnell has misstated the law, and pinned it on the Constitution despite the fact that there is absolutely nothing in there to support his statement. He may not be as academic as people think. Or, he may be screwing with Politico, and through Politico, the rest of us, by saying things that are facially wrong, tangentially inaccurate whether by misstatement or vagueness.
The binary choice he presents, that it’s either cops killing whenever they claim to get a whiff of threat, or waiting “until deadly force is actually used,” either reflects his ignorance or his assumption of ours. Nobody has ever suggested that a cop shouldn’t defend himself until after the other guy pulls the trigger, but that there is no authority for a cop to kill because someone looks kinda threatening-ish.
Or, perhaps the better example is that a cop stands on the hood of a car, staring into the black faces of two people with no weapons in their hands, their eyes staring at the gun in the cop’s hands, pointed directly at them, watching in the slow motion in which the end of life is said to come as he squeezes the trigger, boom, boom, boom, times fifteen, because there was some vague, but erroneous, talk of a shot from a gun that didn’t exist and no one had ever seen.
No, Judge O’Donnell. The Constitution does not privilege Michael Brelo to do that. Only you do.