The Reasonably Scared Cop Rule Meets Slapstick

According to a search warrant, Justine Damond “slapped” the patrol car before she was killed by Officer Mohammed Noor.

In the moments before a yoga teacher was fatally shot by Minneapolis police, a woman slapped the officers’ patrol car while it drove through an alley, according to a search warrant application filed this week.

Though the information in the warrant is vague, it could explain the “loud sound” that reportedly startled Officers Matthew Harrity, the cruiser’s driver, and Officer Mohamed Noor, who was in the front passenger seat, just before Noor shot 40-year-old Justine Damond. Harrity described the noise to investigators.

The ridicule for such a lame justification was manifest in signs put up in protest around the Twin Cities, but that doesn’t mean it can’t be argued as sufficient to justify the kill.

Noor has declined to speak with BCA investigators, but an attorney for Harrity, Fred Bruno, hinted in an interview with the Minneapolis Star Tribune last week that the officers may have believed they were being ambushed.

“It’s certainly reasonable to assume that any police officer would be concerned about a possible ambush under these circumstances,” Bruno told the Star Tribune.

The reference to ambush follows the ambush murder of New York Police Officer Miosotis Familia. The argument lays out fairly clearly: ambush murders of cops for being cops happens. Since it is hardly unreasonable for a police officer to not want to be murdered in an ambush, it is reasonable for cops to take action to prevent an ambush from happening. The argument is at once unassailable and, at the same time, useless as a metric for deciding when a cop can kill.

It should go without saying that the ambush murder of a police officer is not merely counterproductive, but an act of utter insanity. It should, but it doesn’t. Seeing the comments some leave here, which are summarily trashed, it’s apparent that there are people who are filled with mindless hatred of police and express a belief that they are all evil and deserve to be murdered. Whether commenters might carry out their violent fantasies is doubtful, but just the fact that some express such notions serves to justify the fear some officers feel.

But those are anomalies and by no means reflect the thoughts of most people. Indeed, as Frank Miceli loved to point out in the comments, at great length, most people respect the police. And indeed, most people do, and appreciate that they exist. But that doesn’t mean they respect all cops, or respect everything cops do, or believe that cops get to kill whenever they want to. Frank’s view tended to be as one-sided and simplistic as its opposite, that all cops are bad.

The vexing problem is where the line to kill is drawn, and that line will invariably place risk on someone. The question is who that someone should be, the cop or the non-cop.

While the example of Justine Damond, with the addition of her slapping the cruiser (which brings no substantive basis to a reasonable belief that she posed a threat of harm) is fraught with political overtones due to her race, the case of Ismael Lopez sharpens the point:

One officer fired shots at the pit bull that hurtled out of the mobile home in Southaven, Miss., police said. The other officer fired at the person pointing a gun from behind the cracked front door.

They had been trying to serve an arrest warrant in an aggravated assault case at a mobile home in the neighborhood before the sudden explosion of gunfire Sunday night. When they surveyed the aftermath, they made a heart-dropping discovery: They were at the wrong home.

Ismael Lopez likely never knew why officers were at his door — or even that they were officers.

Lopez was asleep when he heard people at his front door. What’s a guy to do? He had a gun, a family to protect and no reason on earth to think the people outside his door were cops. He had done nothing to bring the police to his home and was firmly planted on the right side of the Good Guy Curve.

The cops knew they were cops. The cops knew why they were there. The cops had no interest in taking a chance of being killed. The First Rule of Policing was in full force and effect for the cops. But Lopez? How would he know that his home, his family, was not about to be slaughtered by robbers. Or worse.

The only thing the cops didn’t know was that they were at the wrong home. Oopsie? Not good enough when it come to killing a guy. Or a gal. Or anyone.

The response is that mistakes happen, and indeed, they do. But the making of a mistake is not the cause of death. It’s the  mistake plus the burden of risk of harm. The cops may have made a tragic mistake going to Lopez’s home, but they compounded it by killing first rather than recognizing that when you wake a guy up at night, there is a perfectly reasonable chance that he will come to the door prepared to defend his family.

Returning to Justine Damond, she posed no threat at all, despite the introduction of a slap of a car into the mix. Perhaps she was alerting the officers to her presence, whether to avoid startling them or to avoid being run over by them. Either way, if she did slap the car, she then made her way to the driver’s side window. At that moment, Noor had to decide whether to shoot or not. If he didn’t shoot, the one-in-a-million chance that this was an ambush could come to pass. If he did shoot, there was the highly likely probability that he would harm, if not kill, for no reason.

When the only condition is the objectively reasonable fear of the officer, there are few if any limits on when a cop can kill. It’s easy to manufacture an explanation for fear, particularly when there is the random ambush of officers happening out there. But contrary to the deeply held belief by guys like Frank, people who respect the cops aren’t willing to die just in case. Yes, there is risk out there. When someone chooses to be a police officer, he assumes that risk. That’s his choice. The rest of us aren’t given that option.

16 comments on “The Reasonably Scared Cop Rule Meets Slapstick

  1. LTMG

    Did Ms. Damond really slap the car? Is there a recording of this sound? Is her DNA on the car? Or was the sound of a slap an excuse made by Officers Harrity and Noor to justify the shooting? I haven’t read of the slap being independently confirmed.

    1. SHG Post author

      Is there a recording of this sound? Is her DNA on the car?

      It’s amazing the lengths to which a mind can go to confirm its bias. Did she “really” slap the car? Beats me. Harrity says there was a slap and he was there. Is he lying? Beats me again. Can you disprove his claim, or do you think your refusal to believe is good enough?

      1. albeed

        Ah, the age old question refined for modern times; If a car is not slapped in an alley, and there were only non-police officers there to not hear it, does it make a sound?

  2. B. McLeod

    Well, I suppose we can’t have women in nightclothes slapping the backs of squad cars. I can now understand why Noor, confronted with such brazenly wanton conduct, simply had no choice but to gut shoot her, in order to end the sexual harassment of the police automobile. I trust this will be a lesson to citizens in the twin cities that they cannot expect to emerge unscathed from nonconsensual contact with official vehicles.

  3. Lex

    You just let this gem go unplucked: “After that, it is unknown to BCA agents what exactly happened, but the female became deceased in the alley.”

    1. SHG Post author

      That was deliberate. It was pounded to death on the twitters yesterday, and I do not care to be the caboose on the obvious train.

  4. Nigel Declan

    If the courts persist in their insistence that the appropriate standard is measured through the eyes of a police officer, then police departments will continue to have a perversive incentive to avoid undertaking reforms that could serve to raise the judicial opinion of what constitutes “reasonable fear.” The higher the standard against which LEO conduct is measured, the greater the potential liability for officers and departments.

  5. delurking

    Having read multiple articles now on this search warrant, I can make no sense of what is being said. How is there any evidence that anyone slapped the car (apparently the warrant only says that the car was slapped, not that Damond did it)? And why does that justify a search warrant for Damond’s home? Is she suspected of a crime? Is there any reason to believe there is any relevant evidence in her home? If searching her home is justified, why not every home on that street?

    1. SHG Post author

      I love it when the kids start to realize that the world is sometimes unfair and doesn’t make sense.

  6. Frank Miceli

    When I discontinued active involvement in this blog a short while ago I had no intention to play the revenant. But fairness demands that I protest against what is now being said of me in my absence. Thus, “Frank’s view tended to be as one-sided and simplistic as its opposite that calls cops bad” or again “…in contrast to the deeply held belief by guys like Frank, people who respect the cops aren’t willing to die just in case.”

    I do not hold and have never held views of this sort nor anything remotely similar. Any representation to the contrary is, as here, at best a partial truth, meaning no truth at all. I challenge anyone to convincingly demonstrate otherwise.

    My engaging in questions concerning the role of police is not grounded on abstractions or a handful of encounters. Among other responsibilities in my long career, I served as second or third level supervisor for large numbers of LEO’s working in the eastern, midwestern and western U. S. This entailed close cooperation with other federal, state and local law enforcement officers, the great majority of whom do a good job. Because of the many historical instances where downed bad guys rose again and killed cops, LEO’s have over time been increasingly taught to employ blinding speed and overwhelming violence against serious threats. Perhaps–I say perhaps–this has gone too far. Terrible mistakes have been made and, in a very small number of cases when measured against, say, the number of arrests, bad cops have murdered innocents. But we should never forget that no human society can survive without deterring its members from what it considers anti-social behavior and when legal restrictions are for any reason unenforced–as when cops under high levels of rhetorical and physical attack back off from proactive policing–the result in vulnerable sectors of society is much more criminality, much more murder, as is amply shown by the data I cited earlier.

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