The First Rule of Policing And Alton Sterling

Video of the killing of Alton Sterling emerged earlier, and so it was seized upon as another “execution” of a black man by police.  There was sympathy, as well there should be whenever someone is needlessly killed, and there was outrage. Providing context to why this was a lawful shoot, Radley Balko explained why so much of the shallow basis for the outrage fails to illuminate anything.

Necessity is the mother of invention, and the question is whether it’s more necessary to protect a police officer from any potential threat or protect the life of a person from a police officer. The police invention in response is the First Rule of Policing.

From what we know right now, this appears to be another case of police officers deploying lethal force that was likely legal, but was also unnecessary. The witness’ observation that the police officers appeared to be escalating the situation isn’t contradicted by the video, but the video also doesn’t definitively prove him correct. A police officer can use deadly force if he believes his life or the lives of others are threatened, and if that belief is objectively reasonable. Here we have a witness who says Sterling posed no serious threat, and video that strongly suggests but doesn’t completely the witness’ account to be valid. (Emphasis added.)

As has been discussed at brutal length, the rule of Graham v. Connor, the reasonably scared cop rule, provides little legal comfort to the victim of a police shooting.  If a cop believes there is a potential threat of harm, and another cop nods his bobble head, he gets the stamp of legal approval.  That the killing was unnecessary isn’t the test. It should be, but it’s not.

At Fault Lines, former cop Greg Prickett deconstructs the shooting from the police perspective. offering an explanation as to why the shooters were right to invoke the First Rule of Policing. The point isn’t whether you see what he sees, but that he sees it and he’s not making stuff up. It’s not just a reasonable view, but it’s a view that, when happening in real time, makes the officer who killed look not unreasonable. And that’s all it takes to be a righteous shoot.

Then, there are the voices filled with emotion whose only purpose is to inflame the unduly passionate and make every person who reads the words stupider for having done so. The closest Roxane Gay comes to attempting to be substantive is to note that Louisiana is an open carry state, meaning that the mere possession of a gun in a pocket* (not Sterling’s pocket, since he, as a felon, was not permitted to carry) should not result in death.

While this is a real issue, open carry similarly doesn’t mean that police can’t react when responding to a call about a man who threatened another person with a gun. If the police arrive with the knowledge that this isn’t merely benign carrying of a gun, but a guy who is alleged to have taken it out and pointed it at another person, you can’t leave that tidbit out of the equation. And you certainly can’t do so and expect to be credible. But then, Roxane Gay has never allowed credibility to constrain her.

In the video, a police officer can be heard shouting that Mr. Sterling had a gun (Louisiana is an open-carry state). The National Rifle Association is likely to stay silent because the Second Amendment is rarely celebrated in these cases. The Department of Justice will investigate this case. Perhaps things are changing because the investigation was announced immediately. Charges might be brought against the two officers involved, but, as history both recent and not shows us, it is rare for police officers to be convicted in such shootings.

Put aside the irony of raising the NRA, given that they are the whipping boy for defending the Second Amendment and the whipping boy for not defending it, by the same people who demand the elimination of the Second Amendment. What is missing is facts, the parsing of what happened in this particular case.

It is rare for police officers to be convicted in “such” shootings. She means the execution of black men, because they are presumed criminals. Others would interpret this as anyone whose conduct raises an objectively reasonable threat of harm to police officers, regardless of their gender and race.  Black men are killed for nothing. Black men are also killed for something. Distinguishing between the two matters.

So was this a righteous shoot?  Under Graham v. Connor, as both Radley and Greg agree, it likely was a legal shoot.  And that (pay attention, Roxane) is what raises the more disturbing legal problem, particularly in states that allow people to carry guns. Had the alert that “he has a gun” been false, the question raised would be whether a factually mistaken warning could give rise to a legally-cognizable objective fear of harm.  Here, though, Sterling had a gun, so it doesn’t raise the reasonably stupid cop issue.

At the same time, there is no evidence to show that the police knew Sterling was a felon, precluded by law from possessing a gun, therefore making him presumptively just another guy exercising his Second Amendment right who was the subject of a call to police. Thereupon, he didn’t go down easily, whether it was the natural resistance of a guy being manhandled, as Radley explains, or active resistance, as Greg sees.

Assuming the worst for Sterling and the best for the cops, that this was active resistance, we arrive at the ultimate question.  Was this a real threat to the officers’ lives?  While the simplistic response is that Sterling brought this on himself by resisting, it’s an unhelpful one. We don’t execute people for being insufficiently compliant. Or, at least, we’re not supposed to.

This is where the effort at analysis becomes really sticky. At what point along the threat spectrum is a cop justified in taking a life? There is the existential threat (it’s within the realm of possibility) to the clear and certain threat (the muzzle flash), and somewhere between the two is a point where a cop gets to pull the trigger.

Cops like to say they shouldn’t have to wait for the muzzle flash before they’re allowed to act to protect their lives. This is true, but unhelpful. That the point lies before one extreme doesn’t inform where the point of shooting begins, just where it ends. If they don’t need to await the muzzle flash, should they at least have to await the glint of steel? If not, is the hint of a glint close enough? Bear in mind, we’re talking about killing a man, an outcome not to be taken cavalierly.

And then, there is the concern (are you still with me, Roxane?) that the sense of threat is influenced by the belief that a black man is more likely to pose a threat than a white man, even if it’s not a matter of overt prejudice. Graham v. Connor fails to take any of this into account, essentially deferring to the feelings, as wrapped up in cop jargon, of the cop expert called upon to testify as to the objective reasonableness of the shooting. This isn’t a sufficient test to take a man’s life.

*A gun concealed in a pocket isn’t open carry, but concealed carry, but let’s not allow such details to sidetrack an emotional appeal.

11 thoughts on “The First Rule of Policing And Alton Sterling

  1. Mike

    “existential threat” does not typically mean “within the realm of possibility”.

    I think there is a lower bookend to use before you get to a threat to the cop’s existence.

    I agree that a potential or imaginable threat should not be sufficient to justify killing a man.

    Semantics on the internet; validation from trolls. blah blah blah.

  2. Greg Prickett

    I would like to point out that I do not disagree with Radley’s position. We need to make sure that police don’t cause the escalation, that we give them every tool to prevent the need to go to deadly force.

    I’m not sure that I agree with him that it was unnecessary in this case – the officers did try to use a taser first, without success.

    I think that Sterling did not want to go back to prison, either for revocation of his probation or for the felon with a firearm violation. I think (but obviously cannot prove) that Sterling was motivated to do whatever was necessary to stay out of prison, including fighting the officers.

    1. SHG Post author

      Was he willing to die rather than go back to prison? If you’re going to make the assumption, how far does it stretch?

      1. Greg Prickett

        No, I don’t think that he was willing to die, and I don’t think his initial intent was to harm the officers. I think that he was desperately trying to think of a way out, but couldn’t come up with a viable solution in the time he had. John Wayne said something in his last movie that I have found to be absolutely accurate. Paraphrasing, most men aren’t willing to take decisive action, they bat an eye, or draw a breath before they act. They lose to those who won’t hesitate.

        Sterling reacted, but he was too slow and by the time he was on the ground, it was too late. He was committed to resisting, but that doesn’t mean that he was going to take it all the way to try and kill the officers. Hell, he could have been trying to throw the gun away, like one would with drugs, but we’ll never know.

      1. Nick L. EMT-P

        Don’t conflate using lethal force with execution. The former does not necessarily equal the latter.

        1. SHG Post author

          When we refer to the “death sentence,” it means the outcome of someone dying as a result of the use of lethal force, not an intentional execution. [Also, so you know, I trashed your lengthy comment, both times, because it was way too long, off topic, irrelevant and pedantic. We know what the Tueller Drill is. It’s not your place to give lectures here on the basics.]

  3. Daniel

    As a former cop, I can tell you that the police can make it appear that the person is resisting, when it is actually the police causing the apparent “resistence.” The reason I think it appears the suspect is the one making the apparent resistance is because it is a sort of an optical illusion because most people see the cop as the good guy and the citizen as the bad guy who must have done something bad to come in contact with the police. So, the person who was running away, wasn’t necessarily running away, but was pushed in such a manner to make it appear he was running away.

    On the other hand, one time I removed a very drunk guy from a cafe, I grabbed his arm and barely pulled on it so he would walk with me, and it looked like I threw him over the hood of the car and onto the ground, when it was only because he was so drunk he couldn’t catch himself; he was literally a “falling down drunk.” I was relieved he didn’t get hurt.

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