Accidents Will Happen

When confronted with choices, people often make the wrong one, particularly under unusual circumstances and great stress.  When that happens, we have a name for these people: defendants. It’s not that they’re necessarily bad people, or malevolent, but that they made a choice that gave rise to a cop deciding to arrest them.

Upon reflection, when things are calmer and they have had an opportunity to think through their choices more clearly, they would have made a different choice.  Sometimes, they realize they were impetuous. Sometimes, they realize they went with the gut, which failed them.  Sometimes, they just didn’t think at all. But the situation demanded something, whether commission or omission, and they responded in a way that gave rise to their arrest.

Sometimes, the wrong was no greater than to ask a question when a cop was commanding them to shut up. Sometimes, it was to assert a bit of human dignity when a cop demanded subjugation.  The cop’s view was that the person needed to blindly obey and he would have been fine. The person’s view was that, as a normal person, he meant nothing more than to assert what he deemed ordinary interaction.  In retrospect, he might have chosen differently.  But he didn’t.

Try telling a cop that it was just a mistake.  He won’t be particularly interested, both because he’s heard it a thousand times before, and because it’s not his business to decide.  “Tell it to the judge,” the cop replies.  The judge isn’t interested either.  “I made a mistake” is not a defense, but a mitigation factor at sentence.  He made a choice, and it was the wrong one.

Police Officer Peter Liang had an accident, according to Police Commissioner Bill Bratton.  It cost Akai Gurley his life. He made a choice to unholster his gun, to put his finger on the trigger and to engage in conduct that caused the gun to fire.  Liang had no reason to shoot, and may not have desired a shot being fired, but it happened anyway.  He did not have an accident, though he made a mistake.

An unnamed Burlington, Iowa police officer was called to a domestic dispute the day after Autumn Steele was arrested on a misdemeanor for a domestic incident.

The officer was dispatched to supervise Steele so she could gather some of her belongings. Unfortunately, the situation took a horrific turn when the couple’s German Shepherd reportedly approached the officer. Apparently, the officer felt threatened by the dog because he pulled his gun and began shooting at the animal. An eyewitness revealed the officer fell into the snow while he was shooting and one of the bullets hit Steele in the chest.

Steele died from being shot.  Dogs and cops have a toxic relationship, as has been chronicled in the puppycide incidents, and cops have an unfortunate inclination to kill dogs rather than risk finding out that they’re cuddly pets. In the scheme of the First Rule of Policing, the killing of pets isn’t worthy of a moment’s hesitation.

Eurie Stamps was a 68-year-old grandfather, who sat in his home minding his own business, when the Framingham SWAT Team knocked down his door.  He fell to the floor and put his hands in the air.

Duncan describes moving toward the man – who turned out to be Stamps – with his M4 in the “low-ready” position, a round in the chamber and the rifle in semi-automatic, or single-shot, mode. “I see a man laying on his stomach, somewhere in the hallway,” Duncan tells Forster in the interview on Jan. 6, the day after the shooting.

My options are, focus on him like this and say, ‘Don’t move, don’t move.’ But what happens if there’s a gun or something hidden anywhere and he just reaches quick? What happens?

“Well, I’m still in a position where I gotta make a decision. Do I fire, do I not fire? In my mind as quickly as it was going, I made a decision, I’m gonna take that out of this equation.

“I decided I’m going to go beside of him, get his hands behind his back, not to handcuff him, but just tighten up on his hands and kneel down on him so he can’t reach for anything at all.

Police Officer Paul Duncan had to make a split-second decision, in his own mind.  Not because Stamps did anything to force a decision. He was just lying on the ground, fully submissive. Rather, because Duncan wasn’t certain that Stamps had no weapon, he felt the need to make a choice.

Duncan told investigators that as he moved to pull Stamps’s arms behind him, he fell backwards, somehow causing his gun to discharge. Stamps, a grandfather of 12, was shot dead in his own home, while fully complying with police orders during a raid to serve a warrant for nonviolent, consensual drug crimes for which he had never been implicated.

Stamps, like Akai Gurley and Autumn Steele, was dead.

A mistake is an unintentional act.  In none of these instances, did the police officer intend to kill. But a police officer is trained in the use of weapons, in the manner in which he performs his job.  The point of this training is that he be capable of using them when he intends to, and not killing anyone when he doesn’t.

People aren’t trained in how to behave in interactions with police.  Good guys suffer from the good guy curve, which conflicts with police expectations. A person who has done nothing wrong has no reason to expect that he must temper his conduct to meet the expectations a police officer might have.  Lacking an appreciation of this, a cop will prepare for the worst because of the First Rule of Policing.

Accidents happen.  But these aren’t accidents. These are mistakes, closer to recklessness than negligence. Police are given the benefit of forgiveness for their mistakes.  Others are held to account for accidents as if they were mistakes.  Some are prosecuted for them.  Others just end up on the wrong end of an officer’s gun and die.

At a time when the argument is made that we, those who have never had to endure the hardship of wearing a badge, can’t appreciate how cops stare evil in the face and risk their lives for us every day, unintentional killings at the hand of cops are rationalized as accidents in order to relieve the tension.  Because accidents happen.  Even to cops. Even to us. But then, these killings aren’t accidents.

16 thoughts on “Accidents Will Happen

  1. William Doriss

    Police officers should be more highly vetted. Anyone who really, really wants to be a police officer should have his head examined. Only those who do NOT want to be police officers should be recruited, IMO. A strong desire to be a police officer is reason enough for disqualification on the face of it, IMO.

  2. Piedmont

    Isn’t that where mens rea comes in, though? Each of those officers was acting recklessly, but not (from what you’ve said) with criminal intent. Defendants in the most serious crimes aren’t being prosecuted because they were merely being reckless in mugging someone, in selling meth, or in raping their stepdaughter. When an officer acts with criminal intent, they usually aren’t protected by sovereign immunity.

    When it comes to the crimes where the standard actually IS recklessness, such as reckless discharge of a firearm, reckless driving, and some forms of assault and battery, we get the question of where (if anywhere) sovereign immunity should lie. Too much and the cops will commonly shoot dogs, drive drunk, and beat up suspects. (This happens more often than we’d like, but perhaps not enough to qualify as “commonly” in a nation of 320 million people with access to internet and radio news of every local story.) Too little, and law enforcement will get bogged down in frivolous lawsuits.

    Other than thinking a mild-to-moderate tightening of the slack we give to law enforcement seems to be in order, I don’t know what the proper balance is. You’ve laid out your argument well, but what would you suggest as a solution?

    1. SHG Post author

      You do your argument no service when you cherry pick a few obvious malum in se crimes. Care to try your hand at the 30,000 regulatory and malum prohibitum offenses? It’s not just crimes of recklessness, but crimes of intent where intent is proven by conduct under the doctrine that we intend the natural consequences of our actions. You know better than to rely on such a poor analogy.

      As for your final question, “but what would you suggest as a solution?”, you acknowledge the problem but absolve yourself of responsibility. I would demand cops be held to the standard of not killing people, because I reject your premise that the burden of being a police officer is too difficult to expect them not to wrongfully kill people. I do not accept the premise that mistaken death at the hands of a cop is just an “oopsy,” and that society is constrained to absorb collateral damage because it’s just too hard not to.

      Are my expectations of competence by police too unrealistic? Are you too willing to let other people die or suffer because yours are too low?

  3. Patrick Maupin

    It’s National Law Enforcement Appreciation Day.

    I can’t wait to see what the cops write about you on National Criminal Defense Lawyer Appreciation Day.

    Oh, wait…

  4. 15Fixer

    If the cops stop treating ALL of us like criminals, maybe we will stop treating all of them like [deleted]. If the cops have to answer to the same criminal code as us, maybe they won’t be inclined to have so many “accidents.”

  5. KP

    “”Only those who do NOT want to be police officers should be recruited, IMO. A strong desire to be a police officer is reason enough for disqualification on the face of it, IMO.””

    Not as much as this rule should be applied to politicians! We should pick our politiical leaders like we pick juries, a ballot with an obligation to serve. Then with people in charge who DON’T want to rule our daily lives, we can have a change in the outlook from the top down through the Police force.

    I don’t know why the shootings are such an American problem, Australian Police (like quite a few Euro countries) carry sidearms but rarely draw them. NZ Police don’t carry arms at all unless there is a special reason.

    1. SHG Post author

      The rule would work well for any position of power or authority. Anyone who wants power probably shouldn’t have it.

  6. ExCop-LawStudent

    We need to hold them accountable, which means that we have to have a fair and unbiased investigation (which will not happen with their own or nearby departments), transparency, and special prosecutors. If it meets the elements, you file on the officer and you try him (or her).

    1. JLS

      End qualified immunity and this all goes away.

      It can never happen though as long as the public are kept in ignorance of the extent of police atrocities in this country. The local news in particular sounds like one long police report written by the police. The average person still has a very high view of the police and sees them as the thin blue line protecting us from chaos and until they get the truth about the institution of the police no way anyone can seriously change it.

  7. jerry

    I am not sure what you are arguing for. I am positive this is my fault. I rarely understand much of what goes on around me.

    At times, you seem to be arguing for stricter punishment of cops because you feel how they are treated is not on parity with how we treat citizens. I guess I’d say that given the mistakes you’d describe, I’d say if anything the parity argument argues for less punishment of civilians not more punishment of these cops.

    But I’m not sure I buy the parity argument anyway. In any industrial or human process, mistakes do happen. Take the best equipment, the most precise equipment, calibrate it, maintain it, and mistakes happen. There is always an error rate. When the drill bit breaks, beating the drill press with your belt hardly seems logical.

    What you seem to miss (in my opinion) (or maybe I missed it which is always likely) from your post is any evidence that other expert weapons handlers would testify that the officer’s mistakes were due to recklessness or something the officers could be held responsible for. Maybe these weapons do have a non-trivial rate of firing when handled properly and the handler stumbles. I am not clear as to why we would punish anyone who has had an accident or made a mistake because they literally stumbled.

    Yesterday we heard news that most cancers are caused by “bad luck” not by stuff we ingest. A year or so ago, we learned obesity could very likely be cause by the wrong bacteria some people get not by stuff we ingest. Bad luck happens.

    1. SHG Post author

      Short answer to your long question: it’s well known to anyone who handles weapons that you never put your finger on the trigger unless you’re ready to shoot. Basic gun handling, 101 stuff. As gun guys say, there is no such thing as an accidental shooting.

      1. jerry

        Thanks Scott, what I know about guns could fill a stadium. A stadium for fleas.

        (for what it’s worth, “post comment” is still not activating, my suspicion is this will go to spam too.)

        (is three + 8 no longer 11? Maybe it’s a base 2 spam question, so three + zero = 11)

  8. BobYates

    You’ve got accidents and mistakes confused. An unintentional act is an accident. A mistake is an intentional act or decision that, in retrospect, was unwise. If something is accidental; then it is unintentional and therefore ought not be considered criminal. To say that something was an accident, is to say that it could not involve mens rea and that it does not imply negligence. Conversely, the criminality or negligence of a mistake depends solely on whether the outcome of that decision/action is a crime or imputes recklessness.
    In short, if something is a mistake; then there IS culpability for illegal acts. But, if something is truly an accident; then there’s no culpability. Of course, you could still be held to be negligent or reckless for an accident; but only if the accident could not have happened but for your prior negligence or recklessness. For instance, if you were walking swiftly in a dimly-lit space toward an innocent, motionless individual on the floor and had a loaded weapon with a round in the chamber and your finger on the trigger and then “accidentally” slipped and discharged your weapon; then, even though losing your footing was truly accidental, you would still be culpable for a homicide because, for you, “walking swiftly in a dimly-lit space toward an innocent, motionless individual on the floor and had a loaded weapon with a round in the chamber and your finger on the trigger” is a RECKLESS act.

    That said, FOR A POLICE OFFICER (and only for an LEO), the above actions would NOT be deemed reckless or negligent. This is generally the case for all acts by police. All mistakes are deemed accidents. An intentional mistake becomes negligence, and negligence or recklessness become “accidents” — all, primarily, by judicial fiat.

    What is a more recent development in the application of law, is that (at least for NON-LEOs … i.e., “civilians”, or “mundanes”) true accidents are deemed negligence or recklessness, and negligence or recklessness is deemed criminal intent. Again, mostly through judicial re-interpretation of the meanings of words in legislation. For the “civilian”, there ARE NO accidents … only (criminal) mistakes.

    For the police, on the other hand, there ARE NO mistakes …. merely “accidents”.

      1. SHG Post author

        I couldn’t decide whether it was as incomprehensible as it first appeared, or had something in there that I just wasn’t getting. I erred on the side of posting. Sorry about the headache.

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