Lessons Of Philando Castile and the Reasonably Scared Cop Rule

Having written at great length about the operation of the law, Graham v. Connor, the Reasonably Scared Cop Rule, the dashcam video of the killing of Philando Castile does more in a few seconds to clarify its significance than a hundred posts here. Police Officer Jeronimo Yanez was acquitted for this killing. Whether it’s despite this video or because of it is a matter of perspective.

Beyond the video, there are many subsidiary issues, like the pretext stop for a brake light because Yanez claimed Castile looked like a suspect wanted for a crime. The post hoc rationalization that if Castile would smoke pot in front of a child, how little care would he have for Yanez’s life. But the question of how Yanez could do this, and why the jury found it acceptable, is a core legal question.

Rather than do it again, there are three very smart pieces that do an excellent job of deconstructing the scenario. The first is by Jacob Sullum at Reason. The second, David French at National Review. The third isn’t a post, but a twitstorm by @normative, Julian Sanchez.

The themes in Julian’s twits aren’t new. The reasoning isn’t hard to follow. The law, that shouldn’t, but does, conflate a cop’s subjective fear with the latitude to kill, has been explained ad nauseam. It is not for us, non-cops who have never experienced the need to make a split-second life or death decision, who have never been carefully taught to see the invisible cues that death is possible, if not imminent, to judge Yanez.

In the mind of a cop, of a judge, of the law and, apparently, of the jurors who watched this video and felt Yanez’s fear, reasonable or not, was real, the choice of shoot/don’t shoot was left to the cop on the street and would not be second-guessed. As Julian points out, it’s all logically backward,

As a matter of legal doctrine, the Reasonably Scared Cop Rule appears sound. But it’s undermined by two factors, the first being that there is always an expert, indeed, a cottage industry of “experts,” dedicated to manufacturing a pseudo-reasonable basis for a shooting,

The second is that jurors, your friends and neighbors, will defer to the subjective fear of a police officer as objectively reasonable, no matter what they see or hear. If they perceive the police officer as being sincerely afraid, they will not convict him for the shooting, the killing, no matter whether it’s objectively reasonable or not.

The societal question is whether this is how we wish to live, to put lives at risk from the panic that strikes a cop, varying with the degree of intelligence, fear, self-control, sensitivity, training, and prejudice of every single cop across this nation, Each cop becomes a law unto himself, with the potential outcome being the death of a human being.

The Reasonably Scared Cop Rule doesn’t work. It doesn’t work because it’s a conceptually flawed rule, and it doesn’t work because the people who are asked to apply it, judges and jurors, are unwilling to hold police officers to the standard of behavior, of assumption of risk, they claim to possess. Except when they panic, in which case all is forgotten and they should be entitled to the latitude to kill.

As Julian says, had the same judgment been made in panic by anyone else, there would be no doubt but that he would have been rightfully convicted. When it comes to a cop, all reason is lost and we defer to each cop’s individual feelings of fear. Is this good enough? Is deference to the fear of police officers worth your innocent life?

43 comments on “Lessons Of Philando Castile and the Reasonably Scared Cop Rule

    1. SHG Post author

      I’ve called cops cowards in the past because of this, because they leap to self-protective fear based on increasingly attenuated claims of harm. This time, I try not to load the language, even though I think it’s correct, so as not to invite the usual idiotic cop responses that non-cops don’t understand what it’s like to live in constant fear of death, which is why we are not entitled to judge them.

      1. LarryArnold

        It would be interesting to compare statistics on cops killed pulling over black males, and black males killed while being pulled over, to see which has the most reason to fear death.

        1. SHG Post author

          The statistics are no big secret, but have no bearing on the First Rule of Policing. One cop is one too many.

  1. B. McLeod

    It is not a very good rule, but people in black robes made it and it lies to them to change it.

  2. Beth Clarkson

    I don’t understand how the teen who texted her boyfriend urging him to commit suicide can be convicted of involuntary manslaughter while this police office was acquitted. It seems completely a crazy and inconsistent outcome to me.

    1. SHG Post author

      Law is hard. I had hoped that the million words murdered about police culpability would have made this seem less crazy. Obviously, it has not.

  3. Richard G. Kopf

    SHG,

    Did the state prosecutor over-charge the case? See Marshall H. Tanick, Yanez outcome predictable due to wrong charges, StarTribune (June 16, 2017) (“It’s unfortunate because the prosecutors had a case against Yanez, but they tried the wrong one. He could have been charged with misconduct by a public officer or employee, a misdemeanor offense for acting ‘in excess of lawful authority,’ or intentionally and unlawfully injuring another person. While that charge would not be as serious as the manslaughter and reckless-discharge ones that were unsuccessfully litigated, they would have been easier to pursue and more likely to have resulted in a conviction.”)

    All the best.

    RGK

    1. SHG Post author

      Or they could have charged him with jaywalking, as he was definitely standing in the travel lane of the roadway. But manslaughter was the right charge. Had the Reasonably Scared Cop Rule worked the way SCOTUS assumed it would work in Graham, there would have been a conviction. But as with so many SCOTUS rules (like Miranda, for example), the world as seen from One First isn’t the same as the one we see in the trenches.

      1. Richard Kopf

        SHG,

        Sure, but as you know better than most, legal realism requires that you take what you can get. All the best.

        RGK

        1. John Barleycorn

          Damn Judge, you could have been Janis Ian in another lifetime. Heck you should channel that “legal realism” deal you got going on there and write your own “At Seventeen” tune. You could be a rock star!

          https://youtu.be/-SuavKHes_Y

          1. Richard Kopf

            JB,

            I had, and have the ravaged face. But, alas no talent to go with it.

            All the best.

            RGK

            1. John Barleycorn

              You’re so “modest”. Kinda “sexy” even! Especially in black…

              You don’t need no “instruction” but just in case:

              https://youtu.be/QdFp3Hr66nM

              And here you go:

              https://youtu.be/QhojdnxAT7s

              For the “ravaged” you are looking to “save” including yourself. Perhaps it’s been hiding in plain sight all along? All you got to do is get “grandma” a new pair of shades and ask her to dance?

              Or something like that….But something tells me you have seen more than your fair share of the “ravaged” to figure our what to do with the “picnic” at hand and perhaps even those you dream of.

              P.S. Just for the record, i say fuck the guitar. Bring me a horn band any day and no one leaves the same! Not even the Stones ever got that.

      2. Pavlov

        I don’t see how Graham/Garner/SCOTUS have any relevance for state prosecutions for manslaughter/murder. You often reference those cases in posts about state murder prosecutions. But those are civil cases for 1983 violations based on the 4th Amendment. It’s not like the jury in a manslaughter/murder case is getting a special instruction mandated by SCOTUS applicable only to cops. Juries are getting the same instruction every other self-defense case gets, right? (Unless, perhaps, the state’s legislature has mandated some special instructions for cops–which is not the case in my state).

        At least in my state, the self-defense standard is reasonableness for cops just like its reasonableness for other defendants. It seems like the problematic issue in these state prosecutions is exactly what you describe: jurors “defer to the subjective fear of a police officer as objectively reasonable.” But that’s a cultural issue, not a legal one — not impacted by Graham/SCOTUS.

        Am I having a Billy Madison moment; why bring up Graham/SCOTUS here?

        1. SHG Post author

          We’ve had this discussion a few times before. You are absolutely right that Graham was a 1983 and should have nothing to do with anything, yet it has, it does, and it has consistently been cited as the relevant law, based on the constitutional standard of authority for police officers. It’s not that you’re wrong, or I disagree, but it persists nonetheless.

          1. Pavlov

            I’d expect journalists to refer to Graham/SCOTUS, but when I read it here from an actual CDL, I start second-guessing my understanding. But you’re right: even the State’s expert during the trial referred to Graham, to my surprise. (Caveat: he also testified that he primarily serves as an expert in civil cases. [Ed. Note: the issue arises most often in 1983 cases, so that’s why. It means nothing.]).

            I also did not realize that Minnesota, in fact, has a special statute on the use of deadly force by police officers, applicable in criminal cases. https://www.revisor.mn.gov/statutes/?id=609.066. And the jury received the instruction below, which I can’t imagine passing muster in my state. If I knew how to bold the last sentence, I would, because wow–the “law” in this case (the jury instruction) really does treat a police officer differently.

            “As to each of the counts, the ‘reasonableness’ of a particular use of force must be judged from the perspective of an officer acting reasonably at the moment he is on the scene, rather than with the 20/20 vision of hindsight. The reasonableness inquiry extends only to those facts known to the officer at the precise moment the officer acted with force. The determination of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments about the amount of force that is necessary in a particular situation under circumstances that are tense, uncertain, and rapidly evolving.”

            (Quick search of MN cases reveals none that has sanctioned use of such an instruction in a criminal case.)

            1. SHG Post author

              Damn near made my head explode reading the prosecution’s expert reports in Tamir Rice, both of which relied on Graham as “the law.” Can’t explain it, but it’s pervasive and taken for granted. And while I don’t know the history behind that instruction, it certainly emits the stench of Graham as well.

            2. John Barleycorn

              Must be that the law has a “mind”…

              Go Pavlov! The soup is good around here and the fucking bread…. mmm, mmm, you gots to come visit more.

              Extra loaf and beans on me next time and I won’t even splash around in your mighty fine sauce. I give you my word on that.

              Delicious!

    2. Patrick Burns

      I thought from beginning charges couldn’t be proven either. One overlooked problem is dash cam video proves Castile’s girlfriend, Diamond Reynolds, clearly lied in court & FB. She said Castile was shot for FOLLOWING police directions…That is not true. SHG, don’t you think such a lie alienated prosecutors. Isn’t it likely jurors (rightly or wrongly) were disaffected after learning Reynolds lied over & over in FB Live video? Wouldn’t jurors immediately think “what else is she lying about”?

      1. SHG Post author

        Lie? He was ordered to produce his license and complied by reaching into his pocket for it. Yanez told him not to reach for his gun and he told Yanez he wasn’t. To those of us not encumbered by intellectual disability, there is no lie to be had here. Your mileage, clearly, varies.

        1. Patrick Burns

          Whoa, whoa…the directions to produce a license all changed when cop heard there’s a gun in the car. Any reasonable person would understand that the officer’s body language, voice and directions voided previous request. I suppose you will argue this and ignore the officer yelled three times to NOT REACH.

          Lies are always based on a partial truth…So let’s compromise & it half-truth….

          1. SHG Post author

            He was in the process of reaching when the first shot was fired. Subsequent screams as he continued to pump bullets into Castile in fractional seconds clearly voided the previous request, but not in the way you think.

            1. Patrick Burns

              I get what you’re saying but back to jury. Clearly blacks are more likely to be pulled over and Castile had Guinness Book-type records for stops. So, I’m puzzled how calmly he states he’s carrying while apparently oblivious to natural impulse to show his hands…I’ve followed the case closely (I’m a reporter and have contacted reporters covering the case during the trial). I’ve never heard if during his previous dozens of stops whether Castile ever told police he had a gun. Was it the first time stopped with one? Had he never thought about how he’d act while informing cops he was holding? James Diehl, who teaches where Castile took classes to get gun license, tells students first to tell officers they have a permit to carry when pulled over. He tells them to follow all police commands while keeping their hands visible. Your blog above states we’ve “never been carefully taught to see the invisible cues that death is possible.” I’m suggesting any juror would reasonably argue the opposite – that those legally licensed comprehend the responsibilities and DANGERS involved. So beyond a juror’s “rationalization that if Castile would smoke pot in front of a child, how little care would he have for Yanez’s life” is a more sinister reality he didn’t need to be “taught” the dangers presented to the child while carrying a gun while almost certainly impaired.

            2. SHG Post author

              You weren’t interesting the first two times. You’re even less so here. From your comment, it’s clear you lack the requisite knowledge to have any appreciation of what we’re talking about, and it’s not my job to explain things to you in really small words.

      2. Keith

        Considering her boyfriend and father of the baby in the backseat was just shot full of holes, she’s calm as can be. He was told to reach for his wallet. He was shot for “reaching”.

        The claim he was shot for following instructions appears to have adequate support in the video to support those charges.

        1. Dan

          > Considering her boyfriend and father of the baby in the backseat was

          I have not read any reports claiming Castille was the father of the girl in the back seat.

  4. Jake

    I’ve watched that video a couple of times, and there is zero doubt in my mind that cop was scared -after he shot the victim. In a complete state of panic is a more accurate description. Got me wondering…Do they check the officer’s blood for substances after a firearm is discharged? But I digress.

    As to your perfectly reasonable questions, the answer is unlikely to be popular around here: Legislative change. The court system has proven, beyond a doubt, that it is unable to protect law-abiding Americans from the risk of ‘unnecessary death by scared cop’ with the current set of laws at its disposal. We need new legislation that holds LEOs to a higher standard of care.

    Of course, I’m not holding my breath.

    1. SHG Post author

      Not sure why you think legislation would be unpopular around here. Lege’s write law. That’s the job.

      That said, we already have an extant problem, a court-created rule that absolves police of culpability. While this may well be way too hot for a lege to handle, despite the fact that it should (and assuming, of course, it doesn’t end in a compromise even worse than we have now), until such time as a new law establishes a more appropriate standard for culpability, people are dying. The first order of business is to stop the dying. We can work the rest out as soon as possible.

      1. Jake

        “Not sure why you think legislation would be unpopular around here.”

        I guess I jumped to that conclusion because it was my answer…Which begs the question: Where is SHG and what have you done with him?

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  6. alastair

    What happened to the procedure for “high risk” stops?

    Until Castile mentioned he had a firearm, the officer didn’t even touch his gun while at the side of the car. When he first approaches, he puts his hands on his legs and leans in. His right hand is completely at his side, while he gestures with his left. He doesn’t seem concerned at all about the person he’s talking to posing a threat.

    IF he really thought it was a robbery suspect he was pulling over, why wasn’t he approaching more cautiously in the first place?

    And that’s the point. Philando had zero indication by the cops behaviour or demeanour (or even in the explanation as to why he was being pulled over) that this was a situation anything even remotely close to what the cop perceived it to be – and therefore be in a position to adjust his own behaviour accordingly.
    Indeed that is shown by how the cops made the girlfriend act immediately after the shooting (keep your hand where they are, keep em up, keep em up, walk backwards) even though there was no immediate indication that she was actually armed or even a threat in any way

    Its called situational perception. If those cops thought he was actually an armed robbery suspect and posed an actual threat – then that was how they should have approached the situation (or at least to their local specific training and procedures for high risk stops). Then Philando’s own perceptions and actions would then have been entirely different

    And this tragedy might have been completely avoided

  7. Jardinero1

    I refer to Pavlov’s comment above, “jurors ‘defer to the subjective fear of a police officer as objectively reasonable.’ But that’s a cultural issue, not a legal one” This is tangentially related to Bill Otis’s comments on his own blog, in which he states that this acquittal was a straightforward case of jury nullification. Even though Otis uses the comment to sneer at libertarians and advocates of jury nullification, I think it’s pretty spot on. Strangely, except for the fact that Bill Otis said it, and that this case was yet another cop acquittal, his words and this acquittal kinda helped me keep my faith in the idea of trial by jury, for a moment… for a moment.

    1. SHG Post author

      If you want to discuss Bill Otis’ deep insights, go to his blog and knock yourself out, but not here. Got it?

      1. Jardinero1

        I wouldn’t say the insights expressed there are often very deep. Most of the time it’s “Drugs are bad” and “Lock em up”. But it was the first time, to my knowledge, that I have heard anyone suggest that a cop acquittal is a case of jury nullification. The idea was not my own so I thought it honest to properly attribute it to Bill Otis.

        1. SHG Post author

          So when I wrote, “got it,” you read “tell me more about it, because reasons.” And people wonder why comments are like death by a thousand knives for me.

  8. Matthew S Wideman

    At my conceal and carry class in MO, we we’re taught by a police officer to inform the police officer we were carrying a gun. A very astute lawyer (not me) said out loud, “you are going to get someone in this room killed. We appreciate the instructions on gun safety. But, you need to stop giving advice that’s going the get someone killed”. The police officer replied….”it’s a safety thing”. The lawyer said, “yeah for you and not for me”. At the time, I didn’t think much of that comment. But in light of what happened in this case, and the de facto doctrine that’s on place. It seems like I should listen to that lawyer.

    1. Keith

      Matthew, your advice can easily get someone arrested or killed also. Unfortunately, some States make it mandatory to declare you have a firearm. As MO only makes it a $35 fine to lie to a cop about having a gun, that may have been the best way to go here.

      But in States where it’s required, something my conceal carry instructor mentioned may come in handy.
      Saying Officer, I am a conceal carry permit holder and have a legal firearm” is not the same as saying “I have a gun”.
      They may both be true, but the cop will likely react poorly to the second one. Having a gun means being prepared for eventualities. Some of those involve cops.

      1. SHG Post author

        Nobody has suggested anyone tell a cop simply “I have a gun.” And while a concealed carry holder should be prepared, the classroom feels a lot different than the road with a cop’s gun in your face.

      2. Matthew S Wideman

        First, it wasn’t my advice. Second, I believe at the time we were discussing if one should be upfront about gun possession even if the gun is in a glove box. I am not a great criminal lawyer, but I don’t believe in volunteering potentially dangerous advice to the police. I believe in following the law and avoiding paying fines. But, as SHG said things are a lot different when a gun is in your face and it is 2:00 a.m. I deal with the police on a semi-regular basis, so I don’t get too jumpy. But, many of my friends and clients don’t always feel the same way about police encounters. Discretion sometimes is the better part of valor.

        Around where I live, the St. Louis City. The police can be a little jumpy and heavy handed at times. I had a gun pulled on my dog at my apt by a jumpy city cop. I must admit I have not always told the police when I was carrying a gun when I was pulled over.

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