The Fear of Fear Isn’t Justification

David Kassick probably isn’t the kind of guy most would want to hang out with.  He had addiction issues, and enough paranoia, maybe, that when Hummelstown police officer Lisa Mearkle turned on the turret lights, he took off rather than stop.  For an expired inspection sticker.  No, Kassick exercised some pretty poor judgment.

Yet, it wasn’t bad enough for him to die.

Authorities said Mearkle had attempted to pull over Kassick for expired inspection and emissions stickers before he sped away. She caught up to Kassick near his sister’s home where he had been living for a short time.

He got out and ran before Mearkle incapacitated him with a stun gun, held in her left hand. He was on the ground when she shot him twice in the back with the gun in her right hand, police said.

Given that Kassick was at his sister’s home when he was stopped, one might question the pressing need to tase him, as opposed to calling back-up and having a nice chat with Kassick about his reaction to a minor traffic infraction. But given what happened afterward, all that seems rather trivial.

Mearkle, 36, told investigators she fired because he would not show her his hands and she thought he was reaching into his jacket for a gun.

This is the turning point between the First Rule of Policing and the law.  To Mearkle, the absence of certainty that Kassick was not a potential threat gave rise to her decision to kill him.  To many cops, this makes perfect sense.  After all, from their perspective, their job isn’t to die, especially for the sake of letting a guy like Kassick live.  Yet, that’s not the law.

The stun gun recorded portions of the encounter, and District Attorney Ed Marsico called it the strongest evidence in the case.

He said it appeared Kassick had been trying to remove stun-gun probes from his back.

“At the time Officer Mearkle fires both rounds from her pistol, the video clearly depicts Kassick lying on the snow covered lawn with his face toward the ground,” according to the arrest affidavit. “Furthermore, at the time the rounds are fired nothing can be seen in either of Kassick’s hands, nor does he point or direct anything toward Officer Mearkle.”

That the video, upon careful viewing and reflection, shows Kassick trying to get the taser darts out of his back seems to provide a clear and definitive explanation for why he didn’t have his hands wherever it was that Mearkle wanted them to be. The darts are painful.  Getting them out makes complete sense.

Yet, that wasn’t Mearkle’s concern at the moment.  Her concern was making it home for dinner, and if that meant that Kassick had to suffer the pain of taser darts for a little longer, so what?

But more likely, Mearkle wasn’t thinking taser darts at all. Mearkle wasn’t being cruel or callous about whatever pain Kassick was suffering, but thinking only of her own safety.  Perhaps she didn’t notice what Kassick was trying to do, but rather focused on what he wasn’t doing.   What he wasn’t doing was behaving in a way that gave Mearkle complete assurance that she was safe, that no harm could come to her.

Attorney Brian Perry says the charges against his client, Hummelstown police officer Lisa Mearkle, are an injustice.

Perry says Mearkle “felt like she had to do what she did” when she shot 59-year-old David Kassick twice in the back as he was lying facedown.

This is very likely true, that Mearkle “felt” like she had no choice.  And this is why she stands charged with criminal homicide for the killing of David Kassick.

Some will immediately react that if Kassick hadn’t fled, he wouldn’t be dead.  While likely true, it’s irrelevant. The question isn’t whether Kassick could have, and should have, handled himself better, but whether, under the circumstances that unfolded, Mearkle was lawfully entitled to shoot him dead. Reacting poorly to a police stop does not give rise to the death penalty.

What happened here is something that’s being seen with horrible regularity, a police officer taking the First Rule one step too far, one action too soon.  No one would have questioned Mearkle for drawing her weapon and aiming it at Kassick, unsure what he was doing.

But she leapt over the step where she had a basis in fact to believe that her life was threatened, and shot preemptively. She did not shoot because she was, in fact, threatened, but because she didn’t yet know with certainty that she wasn’t.

H/T Mike Paar

2 thoughts on “The Fear of Fear Isn’t Justification

  1. Jake DiMare

    Is the fact she’s being charged with murder any evidence of a sea change? I couldn’t help but also notice the post over on Popehat about a judge in Oregon on MArch 17th that seemed promising…

    1. SHG Post author

      That she’s being charged certainly beats the crap out of the alternative. A sea change, however, would be a bit premature.

Comments are closed.