The Legal Standard That Must Not Be Named

One of the least understood, and most important, reasons why cops kill with seeming impunity is that people can’t seem to wrap their heads around the legal standard established by Graham v. Connor.  It’s not that lawyers keep it an inside-the-guild secret. It’s been discussed at great length, here and elsewhere.  It’s been explained in detail to writers who aren’t lawyers.  We’re trying our best here.

Why then does Joe Goldstein write a long form article, over 1800 words, about cops killing people that fails miserably to clearly explain two things:

  1. What is the legal standard applied to police killings.
  2. How does it differ from the legal standard applied to everyone else.

It’s not that the article was bad, or particularly wrong, despite Goldstein traveling the well-worn path of opening with an anecdote (in this case, the killing of Ramarly Graham). Sure, he sanitized the anecdote by omitting any mention of the First Rule of Policing, and then-mayor Michael Bloomberg’s complete support of cops shooting first, just in case.  But Goldstein is young, so he can be forgiven his lack of institutional memory, though one would hope his editors would pick up on the omission.

How does he explain to the millions of readers of the New York Times who, between reviews of the best Chardonnay, believe themselves to be deeply empathetic, over-educated, intellectuals?

Ultimately, the grand jury did not indict Officer Haste in the 2012 death of the 18-year-old, illustrating the standard by which police shootings are typically evaluated for criminal prosecution: What matters is the perspective of the officer, with an officer’s sense of danger given significant weight.

Clear, simple and wrong (apologies to Mencken).  Now there is no doubt that the standard set forth in Graham is a hard one to grasp, befuddling a great many who mistakenly believe that words have meaning and the Supreme Court would never say something it didn’t exactly mean or, perhaps, didn’t play out in reality the way it did in their heads in chambers.

The technical (by which I mean, the words used by the Court) test is:

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . .  The 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.

As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. . . .

What makes this seemingly “reasonable” test problematic is the kicker,* what to the unwary would seem like a good thing, but in reality takes the test out of our hands, you and I and the jury, and puts it into the hands of a cottage industry of copsplainers like the pseudo-scientific Bill Lewinski. Much as the word “reasonable” is so appealing to the groundlings, “objectively reasonable” means that the determination of whether a cop killing is a righteous shoot can only be determined by someone with special cop skillz, training, experience, phony cop-science.

Was Officer Haste reasonable in shooting Ramarly Graham in the bathroom because he reached for his waist?  Nope, you don’t get an opinion. I don’t. Not even Officer Haste, who may well explain with tears in his eyes how thoughts of future Thanksgiving dinners with the family ran through his head as he thought he was about to die.  Totally irrelevant.

Rather, an expert is called to the witness stand to explain why, in his highly objective expert opinion based on his police training and experience, it was reasonable for Haste to believe his life was threatened and kill.  The jurors think otherwise? Who cares. They don’t have the ability to be objective because they don’t see the world through the expertise of cop eyes.

Goldstein’s article was otherwise fine. Some quotes from real lawyers, like Tony Ricco, who was an excellent choice but whose quote was no doubt cut to fit,

“The legal standards we have do not hold police sufficiently accountable for their conduct,” said Anthony L. Ricco, a New York defense lawyer whose clients over the years have included both a police officer accused of killing an unarmed black man as well as a man who murdered an officer.

Notably, the description of Tony’s bona fides was far longer than the quote, which was as shallow as possible. No doubt Tony had far deeper thoughts, but there is only so much room in the paper of record.

Hard as it is to imagine, the New York Times has more readers than SJ. I know, the reason eludes me as well, but it’s true. It even has more readers than Fault Lines, which is a terrible shame as they were denied the insight of Jeff Gamso. For better or worse, it thus becomes reasonably important that when the Gray Lady decides it’s time to inform the Real Housewives of New York why cops keep getting away with killing black guys, they do so with a modicum of accuracy.

One of my personal rules is that, when it comes to the law, no one has a right to make people stupider.  Lawyers have an ethical duty to educate the public. Journalists claim some ethical constraints as well, though what they may be remains something of a mystery.  Does it involve being accurate? Being truthful? Exercising some small degree of effort to find out what you’re talking about before pontificating to millions of people? Beats me.

But when it comes to an issue of grave controversy, such as cops killing folks, it seems as if somewhere, somehow, in the over 1800 words murdered to fill the space in the New York Times, they could have found room to name the legal standard they’re talking about. And actually get it right.

*Because I’m really good at naming things, I’ve dubbed this test the “Reasonably Scared Cop Rule.”

18 thoughts on “The Legal Standard That Must Not Be Named

  1. B. McLeod

    It is a common lament that the standard does not impose sufficient accountability. But greater accountability will mean more difficulty recruiting officers, which is a problem in many areas already. Our society does not look like it is ready to operate without police, and if continuing this standard is part of the cost of maintaining police forces, most people will probably accept that.

    1. Billy Bob

      “… , and if continuing this standard is part of the cost of maintaining police forces, most people will probably accept that.”

      Until such time as they don’t. Probababbley to you, sir. That time is rapidly approaching. The animals are getting restless; our ears are close to the ground. We should trust you and your judgment?

      1. SHG Post author

        BB, it’s not about him, but about the masses. Trump isn’t the candidate only by luck, you know. It’s a big country out there.

    2. SHG Post author

      Inside secret is it’s mostly about pensions and enough time between 12 hours shifts to run a side business. They don’t really want to protect and serve; like most people, they just want to be rich and alive.

  2. Troutwaxer

    I note the phrase in your Findlaw link which reads, “The District Court granted respondents’ motion for a directed verdict at the close of Graham’s evidence…”

    I assume this means that the case did not go before a jury, or that it was a non-jury trial?

  3. Iris King

    Where in the Rules of Professional Conduct or Code of Professional Responsibility do lawyers have an ethical duty to educate the public?

    1. SHG Post author

      Preamble, Section 6:

      In addition, a lawyer should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority.

      1. Billy Bob

        You are now both prima facia losers.
        The Gray Lady is the gold standard!
        We were raised on it, and #2, The Herald Tribune.

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