The “Reasonably Scared Cop Rule” has inexplicably morphed from a defense in §1983 cases into a justification defense in prosecutions of cops for engaging in conduct that would be criminal if committed by anyone other than a cop. There are arguments to be made, that we place a different expectation, if not legal duty, on cops to act in the face of violence when non-cops would run away, but that’s not really much of an answer. They have no duty to shoot and they’re no more entitled to commit crimes than anyone else.
The kicker to the rule is its twisted use of the word “reasonable,” as it’s not what you, I or a jury deems reasonable, but what a trained police officer under the particular circumstances would deem reasonable. Since we’re not cops, we aren’t qualified to answer that question, and instead rely on experts in police training and tactics to tell us whether it’s reasonable. Experts like Bill Lewinski, who never met a use of force that was excessive. Experts like cop turned prawf, Seth Stoughten, who testified against Derek Chauvin.
New York’s Attorney General, Letitia James, has proposed a statutory fix to change this.
New York Attorney General Letitia James today announced legislation to change New York state’s laws governing police violence to strengthen prosecutors’ ability to hold police officers accountable for unjustified and excessive use of force. The Police Accountability Act — the most far-reaching use of force reform in the nation — seeks to amend New York’s law that justifies police use of force, which currently sets an exceedingly high standard for prosecuting police officers who have improperly used deadly or excessive force. The centerpiece of the legislation seeks to amend the use of force law from one of simple necessity to one of absolute last resort, mandating that police officers only use force after all other alternatives have been exhausted. The legislation will also establish new criminal penalties for police officers who employ force that is grossly in excess of what is warranted in an interaction with civilians.
The proposal would amend the Penal Law, § 35.30, in two very significant ways. The first would require the use of force as a “last resort.”
3. For the purposes of this section, physical force shall be considered necessary when there are no reasonable alternative means to effect the lawful objective and avoid the use of force or reduce the severity of the force used, including the use of less-lethal force alternatives, non-force tactics or techniques that are intended to stabilize the situation and reduce the immediacy of the threat, such as distance, cover, containment, tactical repositioning, requesting additional officers, and surveillance, verbal communication or de-escalation and the deployment of specialized equipment or resources, such as officers trained in crisis intervention, or mental health professionals. An alternative to the use of physical force may be a reasonable alternative even if it extends the overall duration of the interaction.
As a matter of policy, this reflects some excellent aspirational goals. But this isn’t in the Patrol Guide, but the Penal Law. It’s not about best practices, but mandates. And failure to adhere to its mandates doesn’t result in an admonishment and retraining, but conviction and sentence. And includes this kicker to make its point.
6. The use of any level of force by a police officer or peace officer shall be presumptively not justified pursuant to subdivision one of this section if applied to a person who has been rendered incapable of resisting arrest.
What this is intended to mean is that any use of force against a cuffed person is a crime, although being cuffed doesn’t mean cooperation and doesn’t prevent someone’s foot from meeting a cop’s crotch or grabbing his firearm if the opportunity arises.
The second key aspect is who gets to decide whether the cop’s conduct is “reasonable” under the circumstances.
2. For the purposes of this section, a person reasonably believes a use of force is necessary when (a) he or she actually holds that belief, and (b) a reasonable person under the same circumstances would hold that belief.
See what they did there? Rather than have “reasonableness” determined by a person with the training and experience of a police officer, it’s left to the discretion of “a reasonable person under the same circumstances.” Not a reasonable cop. A reasonable person.
This shift is subtle but critical in the analysis of whether a police officer’s use of force was excessive. On the one hand, juries are no longer slaves to the pseudo-scientific expertise of guys like Lewinski, who birthed a cottage industry of excusers and apologists for cops who shoot too early, beat too hard, or just decide to teach perps a lesson while they’re cuffed and helpless. If juries are constrained to rely on copsplainers, there is almost no scenario that can’t be double-talked into some attenuated claim of “reasonable” fear. Sure, you don’t see it and the jury doesn’t see it, but cops see it because cops are magic.
But cop magic cuts both ways, as was flagrantly apparent in the aftermath of the shooting of Ma’khia Bryant. Despite the officer doing the only thing possible under the circumstances, and preventing the potential murder of the girl in pink, there was a loud and vehement choir of people condemning the killing, proffering ridiculous alternatives. The cop should have talked to her off the ledge as she was about to plunge a knife into another person’s chest. The cop should have shot the knife out of her hand, because what kind of competent cop can’t do that?
The problem with taking “reasonableness” away from a jury is that it places it in the hands of “experts” for whom there is always an excuse for a kill. Gibberish isn’t limited to SJWs, you know. The problem with giving the determination of reasonableness to non-cops is that there is no way for a cop to anticipate what untrained people with unreasonable expectations of what cops can do will decide is “reasonable.” And the problem with AG James’ proposal is that a even a fair mistake in the exercise of discretion isn’t merely a mistake, but a crime.