Much as I’ve questioned some of the subjects of the New York Times’ Room for Debate, yesterday’s flavor raised the big question of whether police use deadly force too often, and offered some very thoughtful responses. One debater, South Carolina law professor and former police officer Seth Stoughton, raised a deeply disconcerting point:
Every time a police shooting gets national attention, the difference in the conflicting attitudes that civilians and law enforcement have toward the use of force is glaring. That conflict drives much of the tension between police agencies and the communities they serve.
Indeed, as I’ve often noted, the First Rule of Policing is to make it home for dinner, a rule that every cop inherently applies in every interaction.
When cops evaluate a use-of-force incident, they ask whether it was justified, focusing on the legal rule set by the Supreme Court in the 1989 case Graham v. Connor. The Court held that officers may use force so long as it is “objectively reasonable.” To determine whether a particular action was objectively reasonable, the Court held, judges must view the situation through the deferential lens of “a reasonable officer on the scene.”
When civilians evaluate a use-of-force incident, they ask whether it was avoidable. They want to know whether the officer could have done something—anything—else.
The difference in perspective here is a critical observation. While non-cops question whether it was necessary to kill, cops only ask whether they can get away with it. From the legal point of view, the propriety of a kill isn’t whether the cop had one, or a hundred, ways to conclude the interaction without anyone getting hurt, but whether the use of force can be justified as being “objectively reasonable.” In other words, the Supreme Court’s rule provides no incentive for police not to kill, as long as they can piece together some excuse for having done so.
The tragic shooting of Tamir Rice last November puts the difference between “justified” and “avoidable” in stark contrast. Officers responding to call that there was a “man with a gun” in a park drove to within about ten feet of their suspect. One officer jumped out of the car and, within two seconds, fatally shot the 12-year-old. Was it justified? Probably, if one narrowly considers the officers proximity to an apparently armed man. Was it avoidable? Almost certainly, when one acknowledges that the officers could have—and should have—parked at a safe distance and approached cautiously by using cover, concealment, and communication.
As Stoughton correctly notes, the killing of 12-year-old Tamir Rice was one that caused sharp conflict in the perception of whether it was lawful and proper. As Stoughton explains with remarkable clarity, it was likely lawful, though hardly proper, assuming propriety is determined by police killing someone only when it cannot be avoided.
Stoughton goes on to present another paradigm for consideration of police use of force:
That’s not the right attitude for police. Our officers should be, must be, guardians, not warriors The goal of the Guardian isn’t to defeat an enemy, it is to protect the community to the extent possible, including the community member that is resisting the officer’s attempt to arrest them. For the guardian, the use of avoidable violence is a failure, even if it satisfies the legal standard.
The causes for this shift in attitude and purpose range from the militarization of police to the incentives offered by the Supreme Court’s ruling in Graham v. Connor, but all focus on the role that police perceive themselves as playing within society. This is seen in the distinction between American and British police, and the number of people they find it necessary to kill:
The search for explanation, for understanding, in why so much violence happens at the hands of law enforcement gives rise to consideration of perspectives. Stoughton provides us with two very real, and very useful, ways to think about how badly skewed the cops’ view of encounters has become, and why we suffer a regular stream of needless violence and death.
The latter paradigm, guardians versus warriors, is a cultural approach that can only change from within law enforcement. Bring back Sheriff Andy of Mayberry. Bring back the cop who wants everyone to make it home for dinner, not just him.
But the former paradigm, that created by the Supreme Court in Graham v. Connor, is entirely a legal incentive problem. As long as the question is whether the cops can piece together vague excuses to justify their fear as being objectively reasonable, particularly in light of the great deference paid the police by the courts and public, there will be no incentive to not kill when the opportunity presents itself.
The background notion is that if the law places a heavier burden on police before pulling the trigger, they will hesitate when faced with a true threat and, in at least some instances, lose the race to survival. The flip side, of course, is that they will shoot first, shoot prematurely. They will shoot not because of an actual threat, but because of the fear of a potential threat, a huge step removed. Yet, the ability to craft a viable excuse for fear is all that’s required as a matter of law to protect the cop from culpability for his kill.
Stoughton’s explanation offers some pretty clear ways to think about how both the law and cop culture have failed to protect the public from the police. And as a former cop, it seems that he’s got a damn good foundation for his perspective.