Walking With A Purpose in Des Moines

There is a laundry list of excuses, easily uttered and proved only by our innate trust in the truthfulness of a police officer’s word.  They range from reaching toward his waistband to the grand-daddy of meaninglessness, the furtive gesture. But in Des Moines, a new one has just been added to the list: walking with a purpose.

Des Moines Officer Vanessa Miller will not face charges after a grand jury looked at her shooting of Ryan Bolinger, 28. Miller shot Bolinger from her car after he approached her car by “walking with a purpose.” Miller had chased Bolinger after he got out of his car earlier and began dancing.

Dancing in the street isn’t an entirely new concept, though it flies better in Haight Ashbury than Iowa, where it’s indicative of something very wrong. People in Iowa must not dance in the street much, giving rise to the need for immediate police intervention with a heavy dose of fear of violence.  It must have been some dance.

After he stopped, Miller said he got out of his car and was walking “with a purpose” toward her car and she concluded that she was being threatened. So she fired through the window of her car and killed him.

A purpose. What purpose? To ask her out on a date? To ask her to join him in a dance?  What purpose?

We’ll never know, because Miller killed him.

The Des Moines police department described the standard governing the use of lethal force as virtually subjective. Police Sergeant Jason Halifax said “It all has to do with how an officer perceives the situation.” Halifax said, “What they’re feeling at the time. It’s what they’re seeing. It’s what they’re experiencing. There’s not a hard fast this is when you shoot and this is when you don’t.”

That’s kinda true, if one squints hard, ignores the whole concept of what constitutes a threat to a cop’s life, and really hates dancing.  So George Washington lawprof Jonathan Turley lawsplains:

That seems materially different from the objective test established in Tennessee v. Garner in 1985, that a police officer could used deadly force on a fleeing suspect if the officer had probable cause to believe that the suspect poses significant threat of death or injury to the officer or others.

However four years later, in Graham v. Connor, the Court emphasized that the standard is whether the officer’s actions are “objectively reasonable in light of the facts and circumstances confronting them.”

That’s what it looks like if you read Supreme Court decisions, because that’s what the opinion in Graham says. But Sgt. Halifax’s explanation, that it’s “virtually subjective,” is far closer to the truth.  Turley remained hung up on the Supreme Court’s words:

While these decisions must be made in short period of time, the standard is not a subjective one. It is hard to understand how a man merely approaching the vehicle satisfied that test.

This confusion is understandable.  When the word “objective” appears in writing, a thoughtful person would say, “but the test is objective, and this is pure, unadulterated subjective bullshit, so it cannot stand.”

Yet, it not only stands, but carries a critical lesson that defies the intellect, the slavish adherence to words in court opinions.  After all, the grand jury heard that Officer Miller killed the guy for walking with a purpose, and shrugged: Well. Okay then. And no indictment was returned.

It’s not that Turley is wrong in what he says, or the failure of “walking with a purpose” meeting any objective test of reasonableness. It’s absurd.  But to stop there is to ignore the often overlooked twist in the law that changes everything.

At Fault Lines, Jeff Gamso, in perhaps the smartest post ever on the law of police killings, explains.

The test for whether the use of force is reasonableness, he said. And that’s measured objectively.

As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.

Which is straightforward enough if not particularly helpful. So you look at all the facts and circumstances. And then? Pluck the answer out of your ass because who’s to say what is or isn’t reasonable under the circumstances.

Whenever the word “reasonable” is used in framing the test, the likelihood is strong that bad things will follow. I know, it seems so wrong, as who doesn’t love reasonableness?  It’s one of those words that makes us feel so fair, so reasonable.  Then again, we feel that way because we all suffer from the same delusion: that we are reasonable, so therefore, whatever we think wins. Hooray!

And indeed, as Jeff aptly notes, we are all reasonable.  To ourselves.

But the reasonable used when it comes to judging a cop killing isn’t mine, or yours, or Jeff’s, or even Turley’s.  No, reasonableness is in the eyes of the shooter.

And here’s the real trick: if the cop, the shooter, didn’t believe shooting and killing the guy was reasonable, then she wouldn’t have done it.  It doesn’t get more objectively reasonable than that.

Of course, there are times when there is no possibility of a threat, or conduct so distant from anything threatening that when it’s seen on video, it can’t be sanctioned.  But those times are rare, exceedingly rare as grand juries appear to tell us.

In this case, there is a video, though the Des Moines police refuse to release it. Probably so as not to prejudice the shooter with observable facts.  However, that doesn’t mean that we can’t see for ourselves the threat posed to a police officer from a dancing guy who walks with a purpose.

12 thoughts on “Walking With A Purpose in Des Moines

  1. Fubar

    Every threat has a unique description.
    In Des Moines, there’s a helpful proscription:
    If you walk with a porpoise,
    They’ll make you a corpus.
    So be safe and Walk Like an Egyptian!

  2. Daniel

    This is how Lompoc, California treats its street dancers: [Ed. Note: Link deleted per rules.]

    Mr. Greenfield’s article reminds me of my pro se jury trial in Lompoc where the cop testified that I had a “determined look” on my face while driving. I asked him if he could illustrate for the jury a determined look. His “determined look” was no different than his other facial expressions while he testified. It took all I could do not to roll on the floor and laugh out loud before the judge and jury. (I was acquitted by the jury, by the way.)

  3. Jeff Clarke

    You could have at least provided a trigger warning before inserting those videos. Here I was, expecting Dancing in the Street by Martha and the Vandellas, and then you bring out this newfangled ’70s and ’80s music…

    Serious question. The Court’s standard is “objectively reasonable”. Is it possible to bend this phrase away from what *that* particular officer was thinking, and to push the phrase in the direction of what policy/training/SOP states is the proper action? As time goes on, and as some local governments modify their policy, maybe what is called “objectively reasonable” can change?

    1. SHG Post author

      To clarify, it is “objectively reasonable” from the perspective of a police officer under the facts and circumstances as perceived by the officer who fired. So while the words “objectively reasonable” are in there, the qualification creates a subjective hole so big that it’s almost impossible for the cop to be wrong.

      That said, it’s up to states and departments to decide their own policy/best practices, and they will never come up with objective standards that aren’t favorable for cops. It’s not as if there is some neutral association out there telling cops best practices. It doesn’t exist. Even if it did, who would be deciding best practices for cops? Hint: nobody would put me in there.

  4. Ken Womble

    The real crime.

    “But one video has stood the test of time as the WORST video ever produced: “Dancing In The Street” by David Bowie and Mick Jagger. Even the fact that it was produced for charity, debuting at Live Aid, doesn’t forgive just how awful this video is.”

  5. CLS

    We can dance if you want to,
    We can leave your friends behind,
    But the cops don’t dance and if you don’t dance
    They’ll shoot your friends and mine.

      1. Fubar

        [
        Officer safety. Check.

        Brazen larceny. Check.

        Smuggled across international borders. Check.

        Threefer three.

        Extra point if he wasn’t wearing a hat.

        ]

  6. James

    I have been reading for years and only posted once before. I only wanted to point out that at times, the standard ROE (Rules Of Engagement) in the warzone in Iraq were higher than what is currently acceptable among our own “Peace Officers”. Since when are our own citizens a bigger threat than an occupied populace that can legally (there) own a full automatic AK-47 and 2 twenty to forty round magazines?

    1. SHG Post author

      A few soldiers have said this, and it’s a point that really needs to be emphasized. For all the whining about officer safety here, our military treats people with greater respect than our cops treat us.

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