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 Castile case reminds me of a weird pattern we always see in the inevitable defenses of police who’ve shot innocent people.
— Julian Sanchez (@normative) June 21, 2017
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?