Yale lawprof Jed Rubenfeld, with a couple of law students, proposes an alternative test to the “reasonable cop” metric for determining when a police officer should shoot. His avowed purpose is both lofty and curious:
IN police shooting cases like that of 12-year-old Tamir Rice in Cleveland, grand jurors are typically asked to focus on one question: At the moment the officer fired, did he have reason to believe the person he shot posed a grave and imminent threat?
This question fails to consider whether alternatives to deadly force were available and how race might have affected the officer’s perception of the threat. Under the prevailing legal standard, those questions aren’t relevant. Until we make them relevant, American policing will continue to have a tragic excessive force problem and, specifically, a race problem.
The disparate impact view of police killing leaves little doubt that cops perceive blacks as more of a threat than whites. Empirical studies back up the obvious.
But racial bias can affect what seems reasonable. Individuals of all races in America perceive black people as more aggressive and dangerous than white people. Studies show that black people are seen as being physically stronger and less prone to feeling pain than people of other races, and black children are often perceived to be older than they are. When faced with an armed black target, shooters are both more likely to shoot and quicker to shoot than they are when faced with an armed white target.
These biases can affect the way we think, judge and act. As a result, force that may seem unreasonable if used against a white person may seem perfectly “reasonable” when used against a black person.
What makes this a curious approach when seeking to propose a new test is that it suggests that race be a factor in determining whether a shoot is righteous or not. While it may be true that police are more apt to view a black person as a potential threat, is the answer to shoot more whites to even out the score?
Obviously, that’s not what he proposes. Rather, the inclusion of the bias piece is meant to question the reasonableness test.
Police officers in the United States are taught that they can use deadly force if they reasonably believe an individual poses a grave, imminent danger to themselves or others. Superficially, this “reasonableness” rule looks unobjectionable.
The use of “reasonableness” is one of those neat law tricks that people find invariably appealing. After all, how can reasonableness be wrong? It’s so, well, reasonable. But Rubenfeld doesn’t accurately explain the existing test. If it were merely “reasonable,” the problem would be substantially different than it is in practice. Rather, the test is derived from Graham v. Connor, which was a § 1983 case that’s been adopted for use in criminal prosecutions for homicides by cops.
The distinction between the Supreme Court’s supposed “objective reasonableness” test and its application in real life is that it’s cop reasonableness, because non-cops can’t understand or appreciate the secret, magic voodoo that gives rise to a police officer’s perception of a threat that appears completely non-threatening to mere mortals. Of course, cops demand this nuance, because they’re special, making split-second decisions while doing a dangerous job under life-threatening situations where their special training enables them to see things that no one else, no juror, no judge, no lawprof, no one but a person trained and experienced in the intricacies of police work, can see.
Without acknowledging this critical aspect of the analysis, Rubenfeld proceeds to his fix.
One critical and common-sense change would be to adopt a necessity rule. The difference is simple but crucial. Even when the police have a reasonable belief that a person is dangerous, the necessity standard does not permit deadly force if non-deadly or less deadly alternatives are available and adequate to meet the threat.
Unworkable? Rubenfeld notes that this is already the DoJ policy, which putatively requires “the use of the least or even a less deadly alternative so long as the use of deadly force is reasonable.” It’s not law, of course, but discretionary policy. He adds another requirement as well.
Only eight states legally require their police officers to give a warning, where feasible, before using deadly force. The necessity rule would make this mandatory. The officer who killed Tamir Rice fired less than two seconds after arriving on the scene. If Ohio law had required the police to first try warning Tamir, which they could have done from inside their vehicle, he, too, would probably still be alive.
Well, in the Tamir Rice case, Loehmann claims to have issued three commands. And even if he didn’t, would his failure have meant that he was obliged to stand there and be shot if his perception of the threat had been credible?
Rubenfeld recognizes the obvious criticism of his solution:
The difference is not semantic; it can be a matter of life or death. A serious necessity rule would require all officers to carry nonlethal weapons and deploy them when feasible.
That it can be a “matter of life or death” doesn’t make his solution more than mere semantics. As reflected in the wiggle words he uses at each level, such as “when feasible,” these fine ideas are subject to the same dreaded “reasonableness” as he condemns. So a cop contends that a warning wasn’t feasible? Boom, dead black kid. So a cop contends that he didn’t shoot because the kid was black, but because he reached for a gun? Boom, dead black kid. So the other person isn’t black? Boom, dead white kid.
Problem solved? Not quite.
There is no easy fix to compel police to wait until a threat is real, imminent and certain, before killing. It happens along a spectrum of threats and excuses, feelings and senses, doubts and the certainty that once a cop sees the flash of the muzzle, it’s too late. No rule can require a cop to allow himself to be killed before acting to defend his life.
The variables are too great, human perceptions and actions too frail, to construct requirements that will mean anything more than the magic words to be spoken to justify a police shooting. While Rubenfeld’s solution sounds good on paper, it’s a steaming pile of horseshit on the street, where cops will shift their justification from “I was in fear of my life” to “I was in fear of my life, perceived no opportunity to use lesser force or stop the bullet by issuing a warning.” And there will be an expert cop witness to explain why the officer’s shots were objectively reasonable.
And therein lies the rub. As long as the Graham v. Connor test, the objectively reasonable cop metric, precludes a jury from finding against the steaming pile of horseshit presented to them from some cop-expert whose livelihood and goal in life is to rationalize why every trigger pull by a police officer couldn’t be helped, there will be no consequences for a needless killing.
It’s hardly a perfect solution, but the perfect solution would require police who choose not to kill when it’s unnecessary, when they can use lesser force or simply wait until the potential of a threat of harm pans out to the point where it’s real. But cops are free to do that now, yet don’t. At least their actions can be judged through the eyes of society, the people who pay for their existence, who decide whether the police are meeting the expectations that justify their wearing a shield, rather than being constrained to subjugate their view of reasonableness for that of police apologists on the witness stand.
This too is a very imperfect solution, since no one ever suggested that jurors are any better at ignoring prejudice toward blacks, or giving cops far too much latitude in killing. But at least it offers a chance to hold police accountable, rather than merely make a minor shift in the rhetoric. As for the 20-20 hindsight, so what? That’s how every trial happens, and if it’s a good enough reason to put a non-cop in prison for life, it’s good enough to be applied to a cop as well.