Explaining The Law of Cop Killing, Well-Intended and Wrong

In many respects, it’s far easier to deal with an article that is wildly off-base when it comes to excusing the killing of unarmed citizens by police than it is to address an article that tries so very hard to get it right, to discuss the law, and despite good intentions, just doesn’t get it.

Jason Lee Steorts, the managing editor of National Review, wrote an article for the Atlantic.  And he just doesn’t get it.

Whether a person is dangerous, and how dangerous he is, is rarely easy to determine. Combine that uncertainty with a low tolerance for risk on the part of both officers and the use-of-force laws that govern their actions, and the result is speculative police killings: cases in which people are made to forfeit their lives on the basis of little more than guesswork about what they might do.

Well, yes and no. This would be a more viable descriptor if an objective requirement of dangerousness was a critical factor.  And to someone looking at it from the outside, unfamiliar with the technical law and unaware of its practical application, the assumption that citizen “dangerousness” played a role in the law would seem appropriate. To indulge in the presumption of rationality is a crappy place to start.

There is a moral logic common to such rules. Two requirements must be met for a use of force to be justified: a “proportionality” requirement and a “necessity” requirement. The proportionality requirement, as Paul H. Robinson, an expert on criminal law at the University of Pennsylvania Law School, summed it up for me, concerns whether a person posed a danger to which the force used against him was a commensurate response.

Ah, yes. Who better to explain the law than an “expert” scholar, whose trench-eyed view will surely enlighten. Though it’s quite likely that his explanation of the law wasn’t absorbed in quite the fashion it was offered, as it’s explained not as a legal requirement, but as “moral logic.”  Protip: “moral logic” only exists in classrooms; there is no such thing as “moral logic” in a courtroom.

This two-prong approach, necessity and proportionality, sounds grand.  And wouldn’t we all love that to be the case. The problem is it’s not the law. It’s not even close to the law.  It’s actually the antithesis of the law, and despite Steorts assertion that it is the “moral logic” common to “such rules,” it’s not. In your effort to be deeply thoughtful and thorough, you just blew it completely.

As an abstraction, this makes sense. In practice, it can be vexingly indeterminate. A use of deadly force is, after all, preventative and the public’s judgment of it retrospective. What would definitely show it to have been justified is an affirmative answer to the question, “If deadly force had not been used against this person, would he have gone on to inflict death or serious injury?” And the answer to that question is unknowable.

To his credit, Steorts acknowledges, sadly after the fact, that his indulgence into the sanitary world of academic theory is “an abstraction.”  While this would be an interesting, albeit unworkable, way to look at the law surrounding police shooting, it’s still neither the law nor practice.  It’s still just an academic abstraction.

The law as to police shootings, police killings, just isn’t all that complicated. If a police officer has an objectively reasonable belief that there is a threat of death or serious injury to his life, or the life of another, he gets to kill.  By objectively reasonable, it means that if the cop believed it, and from the perspective of a cop it wasn’t a ridiculous belief, the shoot is righteous.

You won’t find this anywhere in Steorts’ lengthy Atlantic article. No academic explained this to him, so he didn’t explain it to his readers.

But worse still, prosecutors, judges and juries give such wide latitude to a cop’s belief that  with essentially any excuse, any movement, or smell, or hint that somewhere, somehow, a rhetorical threat can be fashioned out of thin air and scared feelings, the threshold for a justified killing is met.  This too goes unmentioned in the article.

Yet, it’s not for lack of desire to produce an informative article that’s critical of the needless police killings, and the law that makes them acceptable and lets cops skate when the public sees murder.  His heart is in the right place.  His mind, unfortunately, is in the clouds, far too aloof in theory, in abstractions, to get it.

Or maybe he just asked the wrong academic?  There are some, like South Carolina law professor and former police officer Seth Stoughton, who get it clearly.

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.”

Despite the great length, solid prose and obvious thought put into the Atlantic article, nowhere does it say as much, or as correctly, as this one paragraph from Stoughton.  And without it, the well-intended, lengthy and detailed article just gets it wrong.


10 thoughts on “Explaining The Law of Cop Killing, Well-Intended and Wrong

  1. TJR

    “By subjectively reasonable, it means that if the cop believed it, and . . . .”

    It’s my guess that this is a typo and is supposed to say “objectively.” Otherwise, it’s a little confusing until one reaches Stoughton’s definition at the end.

  2. Jerryskids

    When cops evaluate a use-of-force incident, they ask whether it was justified,

    That’s an easy question to answer – if it weren’t justified the cop wouldn’t have shot, would he? Once you start allowing that maybe some shootings involve cops behaving unreasonably and unlawfully, it opens the door to questions as to how many cops in how many situations behave unreasonably and unlawfully. Next thing you know, you’re questioning your belief that the cops only arrest scumbag criminals ( if you’re not a scumbag criminal, then why did the cops arrest you? Everybody the cops arrest is a scumbag criminal, the proof of which is the fact that the cops arrested them) and scumbag criminals should be locked up in a cage, even if we have to cut a few corners, wink at a few ‘technical’ violations of the rules to put them there. Going down that road leads to too much hard thinking, much easier just to assume the cops are the good guys going after the bad guys and any time you think you see a not-good cop going after a not-bad guy it’s just your perspective that clouds your vision and doesn’t allow you to see the truth of the matter.

  3. chris

    “who’s trench-eyed view will surely enlighten”

    Should be “whose”. Is “trench-eyed” your coinage? I plan to steal it regardless.

    1. SHG Post author

      My editor’s on a drinking binge this weekend, so I rely on the kindness of readers, but an email would be nice once in a while. Just sayin’.

      Yes, “trench-eyed™” is mine.

      1. chris

        If I’d known in advance that the comments were moderated, I’d have asked you to spike it in moderation, which you can kindly do with this one. Cheers.

          1. j a higginbotham

            I’ll pay the $1.29 (or $2.58) given previously for answering a question.
            Is it okay to put something in quotes if it is only a paraphrase of what was documented as being said?
            Is it okay if someone else did the paraphrasing and the quote is a quote of an incorrect quote?
            [with reference to Mencken quote earlier where correction never saw the light of day]

            1. SHG Post author

              I would be happy to answer your question if I had the slightest clue what you are talking about. I don’t. This should not be construed as an invitation for you to write another comment. It’s not.

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