Killed By Cops? Blame The Constitution

It is a US Supreme Court precedent based upon The Constitution. If you read the case, the reason the doctrine exist is that police aren’t going to be asked to wait until they are shot or stabbed or punched or otherwise hurt—to wait until the threat materializes and causes physical harm to them. They are privileged by The Constitution to use deadly force in those situations where see a threat to them.

— Judge John P. O’Donnell, Politico, June 12, 2015

Up to now, the discussion out of Ohio had been that Judge O’Donnell was one of those “academic” judges, smart but still a judge.

As for his acquittal after a bench trial of Cleveland Police Officer Michael Brelo for killing Timothy Russell and Melissa Williams after leaping on the hood of their car and firing 15 rounds directly through the windshield into their bodies, the locals took issue with Judge O’Donnell’s “but for” analysis only because it had never before appeared in Ohio law and was completely novel and without precedent. Inside baseball details.

But it’s always a curiosity when a judge takes to the media, post controversial ruling, to explain himself. That’s what Judge O’Donnell appears to have done here, or at least the only reason Politico chose to interview him.  Absent Brelo, no one would give a damn what Judge O’Donnell thought.

Having chosen to be interviewed, however, he’s now on the hook for what he said, and he said this:

[Cops] are privileged by The Constitution to use deadly force in those situations where see a threat to them.

Given his reputation for being an academic judge, and in light of mine for being a legal realist, I thought it prudent to parse the United States Constitution to see if maybe I missed something.  Nope. It’s not there. There isn’t a clause in the Constitution that says this, or anything of the sort.

In the past, there have been rather clear assertions to the contrary, coming from former police officers no less.

As the authors note, law enforcement involves a heaping dose of “law.”  While police have an unfortunate tendency to both be simultaneously ignorant of law, while claiming that their every whim is the law and citizens either comply or suffer the consequences, there is actual law that has been almost entirely ignored by police.

What the authors fail to note, of course, is that judges have been overwhelmingly complicit in the “officer safety”-trumps-law-no-matter-what meme.  Yet, there is no constitutional authority for such a view.

How then can Judge O’Donnell’s claim that it wasn’t him, but the Constitution, that “privileges” cops to use deadly force when they see a threat?  Clearly, it can’t be done. It’s either in there or it isn’t.

Then Judge O’Donnell goes on to note that there may be questions as to whether it’s good policy to “privilege” cops to kill whenever they feel threatened, where he tries to demur:

Whether that is good policy or not, that is for others to decide. I know what the law is, however, and I had to follow it in this case. But the opposite policy would be to not allow police to use deadly force until deadly force is actually used on the officer. If the government wants to institute that policy, I suppose they are welcome to, but we can all see the problems with doing that.

First, if this is a matter of constitutional mandate, then it is not a public policy concern.  There are often choices that simply must be made, to favor one interest or another because they will necessarily clash.  Is the need to catch criminals more important than the need to protect people’s privacy from the police? That would be decided by the Fourth Amendment, requiring a warrant upon probable cause as determined by a neutral magistrate, and as much as we might like cops being able to get the bad guys, they must still get a warrant first (with the exception of most circumstances that have come before courts).

Nowhere in the Constitution are the police mentioned, though there is the “necessary and proper” clause in Section 8, which authorizes Congress to make laws to carry out its authorized functions, but nowhere in those functions is there talk of cops killing citizens.  And it certainly doesn’t say anything about cops killing citizens upon any feeling of threat, in advance of an actual, imminent threat of deadly force, just to be safe.

Judge O’Donnell has misstated the law, and pinned it on the Constitution despite the fact that there is absolutely nothing in there to support his statement.  He may not be as academic as people think.  Or, he may be screwing with Politico, and through Politico, the rest of us, by saying things that are facially wrong, tangentially inaccurate whether by misstatement or vagueness.

The binary choice he presents, that it’s either cops killing whenever they claim to get a whiff of threat, or waiting “until deadly force is actually used,” either reflects his ignorance or his assumption of ours.  Nobody has ever suggested that a cop shouldn’t defend himself until after the other guy pulls the trigger, but that there is no authority for a cop to kill because someone looks kinda threatening-ish.

Or, perhaps the better example is that a cop stands on the hood of a car, staring into the black faces of two people with no weapons in their hands, their eyes staring at the gun in the cop’s hands, pointed directly at them, watching in the slow motion in which the end of life is said to come as he squeezes the trigger, boom, boom, boom, times fifteen, because there was some vague, but erroneous, talk of a shot from a gun that didn’t exist and no one had ever seen.

No, Judge O’Donnell. The Constitution does not privilege Michael Brelo to do that. Only you do.


20 thoughts on “Killed By Cops? Blame The Constitution

  1. Tobias

    This post is as facile and confused as the quote from the judge. First, as you are well aware, the vast bulk of constitutional rights are implied out of the sparse language of the constitution. The constitution doesn’t say anything explicit about interracial marriage, abortion, birth control, etc etc. Yet most people accept those rights as constitutional, and are even eager to find “new” ones, like SSM. At the same time, there are numerous things in the Constitution that appear (to some) to be quite clear, and yet have not been clearly enforced (2d Amendment, contract clause, full faith and credit clause, 10th and 11th amendments,1st Amendment (both religion and speech), etc. etc.)

    Second, both Judge O’Donnell and you are conflating a very difficult multi-layered analysis by simply referring to the “Constitutional” aspects of it. Ignoring the specific facts of the case for a moment, the “right” of self-defense predates the U.S. Constitution and is inherent in common law. Of course, as case after case shows, the devil is in the details.

    You criticize Judge O’Donnell for speaking through the media. I haven’t read the source, so you may be correct that he did a disservice to the majesty of the court. However, I would point out that he is commenting after a bench trial, where he acted as fact-finder, which is a little bit different than most situations in which judges are criticized for speaking informally in public.

    However, I agree with you that there is something bizarre about the judge alluding to “rights” held by police officers. The question isn’t (or wasn’t) what “rights” the police have, it’s whether the police violated the Constitutional rights of the deceased. (I will give him the benefit of the doubt by assuming he was trying to say something about Qualified Immunity, but QI isn’t a “right”, it’s a public policy constraint on the constitutional analysis of the rights that the officer may have violated). The individual officer (should have) enjoyed only the same rights as any other criminal defendant. (Of course, there may be applicable Ohio law on self-defense that only applies to law enforcement, but the fact that the cop was indicted tells us that at least the prosecutor didn’t think it applied).

    The truth is that Fourth Amendment jurisprudence is “firmly” rooted in the quagmire of a “reasonableness” standard. The word is right there in the text of the amendment itself. Thus, on the issue of police use of excessive force, the Constitution basically punts the question (as it should, since no one could foresee all potential facts).

    This just hits the highlights, but I don’t think your criticism comes across any more “academic” or even well-reasoned than what you are criticizing.

    1. SHG Post author

      You are absolutely correct that “the vast bulk of constitutional rights are implied out of the sparse language of the constitution,” but that wasn’t what Judge O’Donnell said, it’s not what most cops think, and since this is a law blog, where most of the readers are lawyers and judges, their knowledge of this is a given.

      On the other hand, this is your first comment here, and perhaps you lack sufficient context to appreciate the nuance of this post. Anyone who speaks of the “majesty of the court” is unlikely to get a warm reception from lawyers, and even judges. We’re past that nonsense.

      1. Tobias

        “Majesty of the courts” was said with tongue firmly in cheek. But I sensed you were condemning the judge for commenting on the case outside of the usual manner of issuing an official decision that stands on its merits. I think most lawyers (myself included) and judges would agree that having judges publicly comment on cases they are involved with should be done very carefully to avoid degrading the already thin veneer of impartiality that our court systems depend on for legitimacy.

        I already said I didn’t bother to read the judge’s full comments – just the part you quoted is enough to tell me I have better things to do this morning.

        However, my intent in posting (pseudo-anonymously, I might add) was not to “show off my mad skillz”. It was an attempt to engage you (and your readers) about the merits of your ostensibly “legal” criticism. I put about as much bleary-eyed Saturday morning thought into it that it deserved (if not more).

        Sadly, it does not appear that the interest here is reasoned debate amongst professionals, but simply more of the same hyperbole (and, yes, resort to ad hominem BS, e.g. I’m just trying to show off my inflated sense of my own intellect, not offering honest debate) that prevents anyone from having a meaningful discussion on the nuances of the tension between civil liberties and the public expectations of law enforcement.

        Anyway, still haven’t had coffee this morning, so ’nuff said.

        1. SHG Post author

          One thought you may want to consider. Sometimes, a commenter’s “reasoned debate amongst professionals” isn’t as reasoned as they think. Granted, the commenter feels quite confident in his position, but inexplicably, other lawyers don’t share his confidence or criticism. It happens all the time.

          I don’t mind your criticism. It doesn’t do much to move me, but it’s fine. What is not clear is whether you have gained much of a feel for SJ, as you’ve made some ungenerous assumptions that others will not find nearly as compelling as you. That happens too. As for your “tongue in cheek,” since I have no clue who you are or your style, it’s impossible to know whether you are serious or not. You ought to bear that in mind. You are not the center of this universe, but just a random commenter coming in from the cold.

          The beauty of peer review is that it’s peer review. It happens to what I write. It happens to what you write as well. I put my name to my views. I take the heat when I’m smacked, and the kudos when I’m not. Either way, it’s here for all to see. But don’t assume that because you find this post facile and inadequate, that means you’re view will be embraced by anyone else.

          Enjoy your coffee. I hope it’s “majestic.”

          1. Tobias

            My coffee was, as usual, majestic. Thanks for your reply. I certainly have no expectations regarding how anyone manages their own blog. If I didn’t believe you had anything of value to say, I wouldn’t bother to follow you, much less comment on your posts. Contrary to Andrew’s perception, I am well aware of how the internet works, and I have a suitably thick skin that nothing anyone says about me online is going to make a difference one way or the other.

            I chimed in because I happen to practice in this area of law, and am constantly frustrated by the disconnect between the public misperception of very serious and important societal issues and the law’s equally myopic ability to serve what I believe to be the public’s interest.

            The laws that protect and empower the police need to be changed, but not as a knee jerk emotional reaction to high-profile cases that the news media suddenly has an interest in pushing. At the same time, public perception of policing should be informed by reality. As members of the profession (and I assume that most of the readership here are lawyer) we do have an obligation to try and participate meaningfully in that debate, wherever it may occur, and regardless of the sensibilities of folks like Andrew, who clearly don’t want any “heretics” messing around in their patch.

            I presently represent a police officer who shot and killed an unarmed man. (I represent him in the civil suit, there was no criminal prosecution). Based on the facts of the case as I know/believe them to be, my client had absolutely no other option, and acted entirely appropriately. We expect to try this case to a jury, and we have not made any offer to settle, because we believe in the merits of our case. Unfortunately, in the present climate, the mere facts of “unarmed victim” and “police officer” are enough to bias 99% of the population (particularly attorneys who are adverse to the state in any capacity). It’s no different than police officers who assume that a black man arrested on a drug charge must automatically be guilty. I have little patience for knee-jerk dogmatism , regardless of which side of any issue it is on.

            “Tobias” is much real name, and anyone who much cares could figure out who I am on Twitter in about 2 seconds. (Hint, I follow SHG).

            (I apologize that all of my comments are typed in Safari on iPhone, which is not exactly conducive to writing reasoned well organized analysis. But, as Andrew said, “Fuck [me].”)

            1. SHG Post author

              Thanks for the background. Context helps. As for searching for you, if you want me to know who you are, you will tell me. If not, I respect your choice. I feel no compulsion to know more than you offer, provided you don’t rely on a specialized credential.

              Bear in mind, I tend to write about one very narrow slice of an issue at a time, so that means there will be a great many other aspects untouched. That’s the difference between a blog and a book or law review article. Over time, however, I’ve touched on a great many such narrow slices, that all add up to something. What, I’m not entirely sure.

              And Andrew is just a foul-mouthed animal. Bad, judge. Bad.

        2. Andrew

          I get the impression that you’ve come here with a sense of entitlement to your personal flavor of “reasoned debate,” as if you have decided to anoint yourself arbiter of how us “professionals” are supposed to behave. A few points.

          1. Fuck you. You are given the inestimable benefit of reading here and, at SHG’s sufference, commenting.

          2. You don’t get to “engage” his readers. You get to say your piece. His readers get to decide if you’ve said something wothwhile or you’re a self-righteous blowhard.

          3. If you expect the internet to bend to your sensibilities, you clearly don’t grasp the internet. This is where we don’t have to behave like dignified dipshits, but get to speak freely amongst ourselves. Not your cup of tea? That’s fine, but nobody named Tobias gets to reinvent the internets in his image.

          4. Fuck you. You are not as smart as you give yourself credit for.

          Don’t choke on your coffee.

    2. RKTlaw

      Did you actually read SHG’s post or were you in such a hurry to show off your in-depth Constitutional acumen that you bypassed it? The posts points are fairly straightforward: 1) the judge is woefully mistaken in thinking there is a Constitutional basis for his decision; 2) given that he thinks it is grounded in a Constitutional right, the public policy discussion is nonsense; and 3) the judge sets up an either/or analysis that is improperly premised. You don’t (and can’t) touch on these salient points, but that didn’t stop you. Much of what you write has absolutely nothing to do with these points but, again, seems designed to try and impress the masses with your knowledge.

  2. Alice Harris

    I am so very happy that you wrote this. Such utter nonsense from a supposedly educated judge should not go unchallenged. Huge thanks to you. Now, can you get equivalent news coverage for the truth about what the Constitution says on the subject?

    1. SHG Post author

      If Vice calls to interview me, I will take them up on the offer and do my best to provide accurate information.

  3. Marc R

    I’ve never posted a link here but I think this is germane to the historical development of police forces arising from the constitution in the sense of either a 2nd Amendment militia argument or at the very least 4th-6th Amendment claims on the rights of an accused which derive from a “police” arrest.

    As to a right to self-defense that predates the our consititution from social contract philosophy (particularly Locke’s Second Treatise on Government), positive versus negative rights started by Bentham/JS Mill and fleshed out more by Isiah Berlin. The common law developed from the Federalist Papers and other documents written by those who drafted major provisions of our constitution that if threatened with a loss of life or liberty then you can preserve your negative rights (or natural rights) through self-defense enough to end the attack on you. As for an unarmed person, no reading of original sources allows deadly action; premised on true self-defense versus this new-fangled perceived violence is irrelevant to any enumerated “right” outside of common law.

    1. SHG Post author

      I’ve left your link in as it’s interesting, but is this really what the post is about, or is this your response to Tobias to show that your mad skillz are better than his mad skillz?

      1. Marc R

        Well that’s obvious. The only reason I don a tie to work, hell the only reason I still accept clients, is to battle my skillz versus Tobias.

    2. Tobias

      What if an unarmed person has you in a chokehold and you are about to pass out? Is the use of deadly force acceptable in that circumstance? (regardless of whether either person is a police officer; let’s start from the basic proposition and then complicate it with law enforcement issues).

      1. SHG Post author

        Just to correct an obvious misunderstanding, you don’t run the comments here by “starting from the basic proposition,” etc. Say what you want in a comment, but this isn’t your soapbox, and I absolutely guarantee you that you will not get to play 20 questions on my blog. I hope I’ve made myself clear.

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