Police Shootings: The Worst Discretion Wins

Some police departments have established rules for when officers can unholster their sidearms.  The concern is that a time may arise when a cop should have, but didn’t, draw his gun because of the rules. The concern is that the cop may be killed for following the rules.

No one wants a cop killed, especially his department. So the New York Police Department, which has a Patrol Guide big enough to choke a carriage horse, dealing with everything from the tilt of a cop’s cap to his nose hair, has no rules as to when a cop can draw his gun.

There are some New York City police officers who can count on one hand the number of times they have drawn a gun, even over decades on the force.

Then there are the officers who patrol the city’s 334 public housing complexes. There are about 2,350 uniformed officers in the department’s Housing Bureau, about 1,825 of whom are rank-and-file police officers.

To some of them, drawing their guns, even with no present threat, is routine, a practice borne of habit or some internal gauge of an encounter that might go bad. And their bosses, unlike some police commanders around the country, permit it.

When probationary officer Peter Liang killed Akai Gurley, his gun was drawn for no better reason than he could, he was doing vertical patrol in a housing project and, it appears, he felt more comfortable with gun drawn.  Just in case. Because you never know. Because stairwells can be dangerous.  But mostly, because he could.

For many, this just isn’t an acceptable answer.  We’re fortunate to have had the benefit of the police perspective from Ex-Cop Law-Student, who explains the First Rule of Policing in action. In the posts here about the Ferguson grand jury, Akai Gurley, Eric Garner earlier and the latest, Tamir Rice, we’ve seen a spate of killings. Each occurred under its own facts and circumstances, and yet there were common threads among them.  Foremost is that a person died without reason.

One response is that the law permits it.  Even though not applicable to all of these cases, the law gives a police officer wide latitude to kill if he, from his perspective, perceives a risk of death or serious bodily harm. This is interpreted as loosely as possible, in a judicial effort to protect police above all others. The law favors cops.

The law bends over backwards to honor the First Rule of Policing, based upon the usual ready excuses: split-second decisions, risking their lives to protect us, a dangerous job, etc. To demand more would be to risk the lives of officers. To demand less is to devalue the lives of non-cops.  The cop went home for dinner. The non-cop was dead. It could have been avoided. Is this the best we can do?

This question was broached in the post about the New York Times Room for Debate, asking whose life is worth saving?  As the points made by ECLS suggest, the situation is inherently problematic:

If you wait until the gun is actually pointed at you, it is too late and your widow will be getting a visit by the chief.

We’re constrained, by definition, to play Monday morning quarterback, which is a fair but unhelpful criticism of challenging the decision of a police officer.  It’s far easier to pick apart the cop’s decision to shoot in the calm of our homes.  But are we precluded from questioning a cop about a dead body because we weren’t standing beside him at the moment he pulled the trigger? It’s our duty as citizens, and our job as lawyers, to question such choices, or we abandon our responsibilities by deferring to police judgment.

As the NYPD has chosen to have no rule on when a gun is drawn, it’s left to the discretion of its officers. That means that the stupidest cop, the one with the worst judgment, the nastiest, the most malevolent, the most afraid, the dirtiest, rules.  His discretion presents the baseline for killing, with the courts likely to bolster his decision.  And we, outsiders that we are and well after-the-fact, are derided for questioning his decision.

One potential rule is to apply the use-of-force regime of the military, with the emphasis on respect and the rule that no force can be used until you see the glint of light on metal.  No doubt the rule is more involved than I’ve just written or has been explained in comments here. The point is that soldiers don’t shoot first out of fear.

The Rules of Engagement, boiled down to their most simplistic level, are that soldiers are authorized to “respond to a hostile attack.” What I understand that to mean is that they may not take pre-emptive measures out of anticipatory fear, but must wait until they know that the attack is real. Only then are they authorized to respond.

This is a huge distinction between how police respond. Indeed, it’s essentially a given, as noted in ECLS’s comment, that they will not await the attack before “responding,” and that they will, upon claim of anticipatory fear, shoot first.  Of course, soldiers are facing enemy combatants. Police are facing their neighbors, Americans, their own.

Mechanics who work nights fixing rooftop elevators in public housing have had officers on vertical patrols aim guns at them, said Gregory Floyd, the president of Teamsters Local 237, which represents about 8,000 such workers.

“They are fearful of one day being mistaken for someone other than an elevator mechanic,” Mr. Floyd said of his members.

It may well be a mistake should a cop kill a mechanic, but it will be no accident.  Should American citizens, whether people who have done absolutely nothing wrong or people who could have behaved better but have committed no offense worthy of execution, be placed at greater risk of death by police than an enemy combatant is at the hands of soldiers at war?

This is an untenable situation. We cannot continue to have people needlessly killed by police.  And all of us, police and non-cop, need to find a way to stop this for all our benefit and survival.

11 thoughts on “Police Shootings: The Worst Discretion Wins

  1. Patrick Maupin

    It’s a terrible problem, and police outcomes do fare badly when compared to military outcomes, so it is interesting and perhaps useful to ruminate on the differences between the police and the military.

    I’m not sure (after an admittedly cursory examination) that the military rules of engagement would offer the police any less cover than they already enjoy. “All necessary means available and all appropriate actions may be used in self-defense” when faced with a “demonstration of hostile intent”, where “hostile intent” includes the threat of force to preclude or impede the mission, and “imminent does not necessarily mean immediate or instantaneous.” As you know, I’m only a layman, but to me this looks like the sort of language that could quite easily sustain the unofficial death sentence for resisting arrest.

    Off the top of my head, I can think of three relevant factors that distinguish military operations from police ones.

    The first is the accountability inherent in the hierarchical military system, with no whiny union and no real immunity for the actors. The US government may claim its actions are immune, but nothing keeps them from quickly and efficiently rearranging things so that those particular actions don’t reoccur with those particular actors.

    The second factor is training. I get the impression that soldiers spend a lot more time training than police.

    Accountability and training would be welcome, but the third thing I can think of may not be: when on patrol, soldiers assume they will be encountering threats at any time, and prepare and act accordingly. The irony here is that the average citizen (e.g. an elevator mechanic) gets nervous when he encounters a cop with his weapon unholstered, but an unholstered sidearm in a ready position gives the bearer more time to assess the situation and arrive at a threat assessment he is comfortable with. That sort of comfort could save lives, assuming it isn’t accompanied with the complacency that the gun hand is also available for door-opening, nose-picking, and other assorted simultaneous activities.

  2. Rick

    I’m a Marine veteran of both Iraq and Afghanistan. There is generally no requirement for the attack to be ongoing or even intended. ROEs vary substantially by situation: on a major offensive operation, much more aggressiveness will be tolerated by the military hierarchy than on a routine patrol through the local villages. (Someone standing on a roof in the middle of a pitched battle with a phone might be assessed to be a scout and killed; someone doing the same during a patrol will possibly be rolled up but probably not otherwise harmed.) Other contextual cues will also come into play: two guys with AK-47s riding with a convoy will probably be understood to be private security; two guys with AK-47s by themselves will probably be assumed to be enemy fighters. Once they are assessed to be a threat, they’ll probably be engaged without a warning or attempt to capture them. I mention this only to clarify that that it’s not really the case that military personnel cannot shoot first.

    A critical difference here, of course, is that police use of force is generally (supposedly) defensive, where killing is done out of necessity. Military use of force, by doctrine, is often offensive.

      1. Vin

        Maybe. Im not as informed as you on this type of thing. I mentioned here only because I do, maybe ignorantly so, believe that sociopaths shooting assault weapons without remorse are a pretty big problem, unless Flynn is exagerating. I don’t know because it’s hard to get an unbiased point of view and I don’t live in a dangerous city.

        1. SHG Post author

          Vin, it’s unclear what you’re asking. It’s a guy who sees the world from his perspective, and is angry that the world doesn’t do the same. He pays lip service to “rights,” but his priorities are the right priorities and he trivializes that which isn’t his priorities. Are “sociopaths shooting assault weapons without remorse are a pretty big problem”? Of course, as are a million other big problems. The difference is we expect sociopaths to be bad. We don’t expect that of cops.

          1. Vin

            I agree with that. I commented more to see where my thinking might be flawed.

            Some of your other posts lead me to believe that my thoughts on this subject may not be fully informed.
            I think where I stand is somewhere close to you as it relates to the police, but I have empathy for men and woman who do what I am unable to do. If make a lousy solider, cop or fireman.
            That doesn’t mean that I think it’s a free for all. Your articles have enlightened me as to the realities of the PR work done by DA’s and law enforcement, giving me reason to think more critically about these issues.
            What I was asking here was more to gauge how you would respond to the Chief because on the surface his statements made sense to me. Im starting to think these types of things make sense because Im uniformed.

  3. George B

    > The second factor is training. I get the impression that soldiers spend a lot more time training than police.

    A friend is a retired Ranger and CounterIntelligence officer, and later continued in the Community. He often expressed outright horror over the level of training of cops he’s encountered.

  4. KP

    I don’t know why Americans are so bad with guns, I guess its just the handguns that cause the problems. The cops fear for their lives when everyone else may have the same firepower.

    New Zealand has unregistered rifles. You get a licence for a catagory and the Police make sure you have safe storage, then you can buy as many guns in that catagory as you like & they don’t keep track. Semi-autos, silencers are all un-registered. Handguns you can own but can’t carry.

    We have a “black” underclass who make up most of the prison inmates and live in the most violence. We have Govt housing and areas where cops don’t like to go. We have gangs and drugs and shooting between them.

    Our cops don’t even carry guns. They must defuse a situaton or call the Armed Offenders Squad. I suppose they start off with the outlook that they are not going to get killed (and some do) so they don’t need to kill the person in front of them.

    It certainly seems American cops and black Americans are not on the same side of society, never mind the same side in the war on drugs, or on poverty. The culture certainly needs a change in attitude.

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