I’ve left little doubt as to how I view the murder of 12-year-old Tamir Rice. Others disagree, with a heavy dose of “cop perspective” that an outsider can’t appreciate. To find oneself on the business end of a threat to one’s life tends to weigh heavily on right and wrong, and the fine line between kill or be killed doesn’t make for an easy choice.
But whether Cleveland police Officer Timothy Loehmann was a killer or a cop invoking the First Rule of Policing is a matter of law, for better or worse. My analysis of the law of Graham v. Connor is that it’s for the worst. The law permits a cop who pre-emptively perceives, through his magic cop voodoo, a deadly threat to kill first. It’s very protective of police lives. It’s a death warrant for everyone else. It’s bad law.
Yet, the backlash to the twin reports rationalizing a needless killing went orthogonal, abandoning law altogether:
But the reports show exactly what’s wrong with the dialogue surrounding police shootings. Instead of asking whether Loehmann’s actions were ethical, moral, or best practices, the conversation immediately shifts to whether they were legal. But legality doesn’t tell us anything about whether the shooting was preventable or acceptable — and that’s really what we should care about.
The commission of a crime, or a righteous shoot, is, and must be, exclusively a question of law. German Lopez’s swan dive into feelz, and bizarre contention that there is something wrong with “the conversation immediately shift[ing] to whether they were legal,” is precisely the sort of pandering to the pathologically ignorant that could make this tragedy even worse than it already is.
In the case of Loehmann, it’s easy to see how he could reasonably perceive a threat: He thought Rice was older, and that Rice reached for a real gun, so he thought he needed to use deadly force to eliminate the threat.
But the Rice case shows exactly what’s wrong with focusing too much on the legal issues.
The substitution of feelings for reason, of the vagaries of “ethics, morality and best practices” for law, is certainly something that a great many people will find appealing. They gush their feelings of right and wrong, and why shouldn’t they? Why shouldn’t we applaud them when we, when I, agree with their outcome even if the path by which they got there is repugnant?
The error of this mush-mindedness is made clear by this disconnect:
Another way to put it, as criminal justice writer Radley Balko wrote in theWashington Post, is whether these shootings should be deemed acceptable by society even if they are legal:
Asking if a police shooting was legal tells us nothing about whether or not we should change the law. Asking whether or not it was within a police agency’s policies and procedures tells us nothing about the wisdom of those policies and procedures. Of course, both of those questions are important if your primary interest is in punishing police officers for these incidents. But while it can certainly be frustrating to see cops get a pass over and over again, even in incidents that seem particularly egregious, focusing on the individual officers involved hasn’t (and won’t) stopped people from getting killed.
So the concern isn’t really whether the Rice shooting was legal.
No, no, no. That’s the opposite of what Radley was saying. What he wrote is that when the law is wrong, change the law. He does not suggest that when we don’t like the outcome, then we should ignore the law and go with whatever comports with our feelings.
Among the most abhorrent concepts is the end justifies the means. That’s how cops justify lying on the stand to make sure the guy they know is guilty gets convicted. That’s why cops feel no qualms about killing someone who didn’t deserve to die so that they made it home for dinner that night. That’s why Tamir Rice is dead.
And so it’s better when German Lopez plays the exact same game, except with his outcome in place of Loehmann’s? Putting aside the obvious problem that perceptions of “justice” provide no measure of right or wrong, each of us having our own and each of us certain that our view of “justice” is right and anyone who sees it differently is at least wrong, and likely evil to boot, this swaps the rule of law for the tyranny of the majority.
Here’s the bad news, kidz. Most people think sufficiently well of the cops as to support the idea that, if they fear deadly harm, they should kill first. Ever notice that a dead cop makes the front page, but a dead non-cop is rarely mentioned except when circumstances are extreme? There is a reason for that. People believe that cops’ lives are special. At least more special than anyone else’s.
So if you’re going to promote the feelz view of right and wrong, don’t be surprise to not only be on the losing side of the deal, but expect things to be far, far worse than they are now. The law provides lines that can be viewed by all, rules upon which right and wrong can be known in advance, and condemned when crossed. Feelz provides, well, an argument over which flavor of ice cream is better, vanilla or chocolate. Nobody wins an argument about feelz.
Graham v. Connor is unduly protective of law enforcement’s right to kill, based upon a phony construct of objectivity that relies on the magic powers of police. It forfeits non-cop lives to claimed fears of cops as dictated by others who share their magic powers. It doesn’t matter what the public sees, as we lack the magic power to see things through the eyes of the most fearful cop possible.
The law should change. A true objective test, based on the reasonable person rather than the reasonable cop apologist, would be a start. But forget the law? Throwing it out in favor of “ethics, morality and best practices,” reduces the outcome to mob rule. And the mob isn’t your friend either.
This is a sorry state of affairs, but it’s been a long time in coming. We do not turn the ship of police-state around on a dime. Perhaps we should look to foreign “best practices” in LE. Enough is enough.
Like Saudi Arabia? Be careful what you ask for. You might get it.
Yea, well, we catch your drift, but this is not what we had in mind. We already know Sharia Law is a snakepit and a basketful of worms on the international judicial stage. Although,…. sometimes one wonders if our system is really any better?!!? Thanx for the update, but we had the “civilized world” of Great Britain and Europe in mind. Surely you knew this, WeisenHeimer that you are. And don’t call me “Shirley”!
Greatly appreciate the subtle distinctions you make between bad action and bad law. It is the sort of sloppy thinking that I believe a great many lay people fall into. If a criminal has their civil rights violated, people are far too willing to forget the law because he’s a bad guy anyway. What does it matter that his rights were violated?
Or as you demonstrate here, the opposite. Why should we worry about the law when our sense of righteousness is offended? I see this sort of thinking in so many debates stretching far beyond this issue.
Sorry if I just sloppily regurgitated your post. It was very good. It’s a shame that otherwise well-meaning critics seem unable to grasp that the fact that it may have been a legal shooting is the only issue worth discussion.
I thought it was you, SHG, who commented in another piece how there’s a difference between justifying police conduct on the grounds that it was legal, and examining their conduct to determine if it was the best, or only, possible outcome?
Sure the law needs to change, but it seems doubtful that change is going to start there without first explaining to the hoi polloi that perhaps every cop decision to blow away some clueless but largely innocent and/or harmless citizen wasn’t the only possible course of action. Legislators are going to be loath to change the law favoring the enforcement arm of the state without some pressure.
If there is a quote I’ve written or a post you want to point to, I might have a clue what your talking about. I don’t. Filtering what I write through what you “thought” means nothing to me.
In a piece February 19, 2013 about the needless death of a man with down syndrome, Robert Ethan Saylor, you wrote, “When we speak of a person needlessly killed, the issue of remedy isn’t the point. The issue is why was a human being’s life lost.”
Asking “whether the shooting was preventable” is a reasonable question, even after a “righteous shoot”. You have asked it many times before. Did the cops need to be patrolling a dark stairwell with their guns drawn? Did they need to enter the house, no-knock with a flash-bang? Could negotiation and de-escalation have been a better approach (“No Threat at All” December 8, 2014).
The question of whether a killing was legal is important, but it is not the only question. The issues are not “exclusively a question of law”.
Different issues and approaches apply to different players. This applies to the training and attitude of police in the execution of their duty: Rather than police acting in accordance with the minimum legal requirements (I shoot because the law allows me to shoot), police should be trained, and operate in a culture, that goes above the minimum legal requirements and try to prevent needless killings. This is the paradigm shift on the part of police.
Here, after the killing is done, the question isn’t aspirational, “can the cops be better, do better, raise the bar of their performance so people don’t die,” but whether they have violated the law. The law is the minimum (and under Graham v. Connor, it’s too low). Before they pull the trigger (or toss the flashbang, etc.), the issues different, can they be trained and desire not to do harm to others.
Attorney ethics might be a good analogy. The rules provide the minimum ethical constraints required of lawyers, but they are hardly ethics. Should attorneys be ethical or should they be as unethical as they can get away with so long as they don’t go below the absolute minimum? That’s the distinction between police use of force and the law.
Well, this kind of makes up for that thoroughly horrid Mimesis post you tweeted at me.
Cops don’t get the last say interpreting wheather or not their magical powers of reasonable will be judged by twelve, prosecutors do.
The holly grail of Graham vs. Conner when it comes to reasonable has plenty of room for reasonable minds to let the system work as designed.
Seems to me you can change all the laws you want but if you don’t fix the “coward” culture of the criminal justice system you are just shooting blanks out of your orange capped replica BB-gun.
Tamir was judged by one, carried by six and the band plays on.
Manslaughter? Murder? Legal mistake? Guess we will never know…because we need a new law? I don’t think so.
P.S. The phrase “righteous shoot” is a weak and meaningless and you use it too often.
Must the law change? Graham v Connor does say that, “[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving – about the amount of force that is necessary in a particular situation.” But Rehnquist also wrote, “[a]n officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.”
That’s hardly unbroken ground. Nearly a century ago, SCOTUS, speaking thru the sainted Holmes, famously wrote “detached reflection is not demanded in the face of an uplifted knife,” and directed a new trial where the instructions stated a “duty to retreat if such would appear to a reasonable person not to risk death or serious harm,” as opposed to the defendant’s requested instruction that “if the defendant had reasonable grounds of apprehension that he was in danger of losing his life or of suffering serious bodily harm from (victim), he was not bound to retreat…” . Brown v US, 256 US 342 (1920).
Does this mean I am arguing the killing of Tamir Rice was justified or even excusable? No. “Subjective fears” are no improvement over “good intentions” in their ability to make an act “objectively reasonable.” I am arguing that a change in the law is less necessary than a change in attitude by prosecutors (including ones merely discouraged by perceived bleak prospects for success) and fact finders who now nullify law for LEO as surely as during Reconstruction southern juries did for klansmen.
Though I know it orthogonal, one can see in New York Times v Sullivan the Supreme Court’s recognition of the latitude fact-finders in fact enjoy, the potential for abuse thereof, and a decision not to allow the Alabama court which mulcted NYT the opportunity to indulge that latitude, when it included in the opinion an express finding that the allegedly defamatory publication regarding Mr. Sullivan was not (constitutionally) malicious.
As long as the “objective reasonableness” determination can’t be made by a juror, but only by an expert in police procedure, it ain’t happening.
A factual finding in a criminal case can be made only by an “expert in police procedure?” Fascinating. Please amplify.
Read my post on the law from two days ago, linked in the first sentence of this post. Then ask again.
Whatever esteemed one…
The cheap seats are already placing bets on when all this reasonable, delicate, and percise layering of the mustard, mayo, and cheese that make particular
ham sandwichs no true bills before the prosecutor even enters the circus tent will turn into some crazy eyed grand jury foreperson, out on bail for disorderly conduct, showing up on the Today Show talking about shape shifting judges from Neptune and Prosecutors swearing secret allegiances to the Flying Spagatti Monster.
Somebody better hurry up and figure out a way circumvent the insanity befor the shit hits the fan or the next Speaker of the House might take things into his own hands and starts holding press conferences on the steps of the Supreme’s club house and start talking about the constitutional amendments that will be needed to keep cops safe and return civility to the land.
Whatever? That’s just mean.
I would attempt to be nicer if you started including footnotes to songs that go well with the particular case law you are highlighting the deficiencies of in your posts.
It would help me concentrate on all the reasons case law can rival the counter intuitivness of the tunnel effect and various other macanations of quantum machanics.
P.S. If you ever do another series of videos, don’t discount Scott Geezer the Casegazer’s Guide to the Universe as a title for the series.
https://youtu.be/Dp6LT2MdaPI
I always wonder where people get the idea that the law is so one dimensional, that everything is “legal” or “illegal”, as though everything is a felony or a constitutional right. Then I remember that I used to be that dumb, too.
I can’t imagine how crazy most of this must seem to non-lawyers. A ton of rules, but no rules. Black and white, then all shades of gray. They’re not dumb, but just unaccustomed to the cesspool of ambiguities that makes up the law.
Well, I don’t deal with the law every day at Dairy Queen, and I would suggest that they think that it looks like the cop has to be found guilty on a homicide charge of some kind, or the law is saying that none of the cops did anything wrong or anything they need to change in the future.
And if the family subsequently wins a civil suit against the department, it’ll look like the civil court is saying that the cop got away with murder, even if the judgment is explicitly based on the other cop putting him in the position he was in.
And if the family loses, it’ll look like the civil jury is saying that the kid deserved to get shot, even if it doesn’t consider comparative fault.
And if you or I tell them that there is anything other than whatever is their favorite thing to get butthurt about preventing the result they wanted, they’ll get even more butthurt about that.
Pretty much. Yup.
How would a bad Supreme Court decision like Graham v Connor be unwound? Can the Supremes take another case challenging the standard and issue a new opinion or would it require Congress to write or alter a statute in order to change this?
The best solution would be for the Supremes to “clarify” Graham v. Connor, especially after a district court judge “distinguished” it from what it says. Congress could write a law to correct the problem, but congress.
District court Judges? Holly Smokes esteemed one!? Does that mean some prosecutors are going to have to actually take some of these “reasonable murder” cases before grand juries and secure indictments and then actually attempt to secure a conviction at trial?
Think of all the cash involved in that for defense attorneys, from PBA’s no less, not to mention the cleansing effect such actions would have on the conflicted souls of countless prosecutors throughout the land!
I can’t believe it, are you really saying the system will work if everyone were to preform their roll both ethically and honestly? Even them rusty and tired out old Supremes who think dogs posses supernatural skills independent of their handlers?
I knew you had some optimism left in you somewhere…
I love it!
And I happen to know for a fact that 7 out of 10 prosecutors* in America read your blog in an attempt to pick up on your secret-super- hero-esteemed- one-tricks-and-special-powers-and-perceptions that only a qualified defense lawyer of your stature can truly understand and use them against defense lawyers.
I can’t wait until they realize that’s its O.K. for them to preform their duties both ethically and honestly while still holding their heads up high…because, well because….well because of district court judges for one!
Far out!!!! How cool is that…!
Hallelujah! I bet an entire metric shit ton or two of relief is going to wash over Timothy, the prosecutor from the Land of Cleveland, shoulders the instant he finishes reading the comment you left of above in your glorious back pages.
Fantastic, you are the best esteemed one!
* I also happen to know for a fact that at least 2 of the 9 Supremes and 3 out of every 10 district court judges in America also read your blog but I am sworn to secrecy as to their motives for doing so.
Sadly, no. I have failed you again. Graham has nothing to do with criminal law, which is defined by the crime of murder at the state level. Graham has to do with whether it’s a constitutional deprivation, not whether the crime of murder has been committed.
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