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.
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.