You can't, no. But if we kill all 12-year-olds who do stupid, selfish, thoughtless things, who will be left?
Also, we know some busybody called the police. We don't actually know that Rice was doing anything that a reasonable person would have been frightened by (that is, the caller wasn't themselves scared, they were pretty sure the gun was fake. The caller thought other people were scared). I haven't heard anyone come forward and talk about how Rice was terrorizing them before the cops got there.
The whole thing is rotten. But if Rice was "brandishing" the gun (and I assume he was, or the old guy probably wouldn't have seen it) then the open-carry point is moot. That's all I'm saying.
My friend on Twitter said that Ohio doesn't have a specific law against "brandishing". Any info on that?
My understanding, and I'm not an expert and haven't looked at the Ohio statutes, is that it's not called "brandishing" everywhere, but there's probably a law that prohibits waving your gun around, whatever you call that.
Okay, 'brandishing'? It's a toy that he was playing with, because he was a child who plays with toys. He probably was waving it around in a way that would be desperately irresponsible with a real gun, but there's a lot of room between that and actually threatening anyone with it.
Here is a writeup of recommended police response to open carry, instructions from the Cincy police chief endorsed by a gun-rights group. I don't know that I care enough to look up the actual statutes, but I could.
I think the open carry point is moot regardless. Someone calls, and the officers respond. (This happens a lot in videos of open carry guys flexing rights on youtube-- officers show up because someone called about a suspicious person, there's an encounter, if there's no law broken it ends.) Once they're in the park, the shooting happened because, in their view, Rice was reaching in his waistband to pull out what looks pretty much exactly like a real gun. This, in the grand jury's judgment, creates a reasonable judgment of imminent danger and justifies the shooting. Or at least that's how I understand what the legal situation is.
That's why I put it quotes, just to mean "having it out" or "waving it around" or whatever he was doing. The fact that it was a toy, given that it was indistinguishable from a real gun, doesn't seem relevant.
I think some states have laws prohibiting "brandishing" while other states charges charge those acts as "inducing panic" or "terroristic threats."
8: The thing is, once 'open carry' is legal, I don't understand how it can be legitimate for a cop to perceive 'his hand was moving near what I thought was a gun' as a threat without more. That is, if the presence of the gun is an indication that the situation is a criminal one, any body-language near the gun, sure, it's a threat. But if having a gun (which the cops didn't see him 'brandish', or wave around, or threaten anyone with) is fine, then ambiguous movements near the gun can't reasonably be a trigger for lethal force.
I refuse to believe that anyone doing 'open carry', is successfully going to never make a motion that could be interpreted as possibly the beginning of drawing the gun. It's just easier for some people to get the benefit of the doubt than others.
I think this is my last comment on this, since I'm sounding like a broken record. As I understand the law, the test in Graham is reasonable belief. Whether a particular "ambiguous movement" is grounds for that is a question that can't be answered without looking at each case.
Ogged and FL are completely right about this. "Open Carry" means you can carry a non-concealed gun around in public without a license. That has essentially zero to do with whether a perceived use of the gun is reasonably seen as threatening or not, either by a bystander or an officer. Of course in an open carry state if you are seen as reaching for/about to fire upon a police officer with a gun, the police officer can shoot you. Or if a civilian sees you waving your gun around in a threatening way, the police can intervene. This makes police shootings more likely in open carry states, since there are more guns around and in public, but it doesn't change the standard for what's reasonably perceived as a threat by someone who has a gun. Similarly, in a non-open carry state, police can't shoot people just because they are holding a gun.
The relevant legal question in this case is what to do about cops who seem to have, against any reasonable standard of good policing, put themselves into a position where deciding to shoot a twelve year old with a toy gun could be perceived as reasonable if one focuses only on the immediate few seconds before the decision to shoot was made, but totally unreasonable when the set-up to the event is taken into account. Open carry is neither here nor there.
Yeah, you'd have to do something like look at the video yourself and use your own judgment as to whether the police officer's belief that he was in danger of his life was reasonable. It looks unreasonable to me, based on the video record of this incident. But there's not much of a way to argue with someone who disagrees beyond assertion and counter-assertion.
My only point in 12 is that if it's legitimate to carry a gun in public, the rule of when it's reasonable for a police officer to believe he is in danger from that gun can't be that any movement whatsoever near the gun is per se a threat.
but it doesn't change the standard for what's reasonably perceived as a threat by someone who has a gun.
You know, I don't think this is true. In NYC, open carry isn't legal. For that reason, if I saw someone other than a police officer carrying a gun, I would know that they were a criminal, and someone who was willing to break the law specifically to carry a weapon, which gives rise to a reasonable expectation that they had some intent to use it. At that point, any motion involving the gun is, I think, reasonably perceivable as threatening.
In the Second Amendment utopias where guns are fashion accessories, on the other hand, wearing a gun doesn't necessarily imply anything about your intent other than your fondness for Constitutional law. At which point, e.g., adjusting the strap on your rifle, or reaching for the pocket next to where your gun is holstered, is I think reasonably understood as less threatening than it would be in a jurisdiction where the presence of the gun itself indicates that there is criminal activity ongoing.
The fact that it was a toy, given that it was indistinguishable from a real gun
If we as a society have failed at restricting access to guns, can we at least focus our efforts on restricting children's access to toys that are indistinguishable from guns?
Oh, man, yes. The removable orange safety tips? What on earth is that? Realistic looking toy guns should not be for sale.
Can you "brandish", that is to say play with, a toy gun? As in, "Bang bang, you're dead"? If not, the sale of toy guns is useless. If so, the sale of toy guns is dangerous.
In New York, police can't shoot you just because you're wearing a gun that they think is unlicensed, even though it's illegal for you to be doing so. In New York and Ohio, police can't shoot you for making "any movement whatsoever"'towards your gun, even if the police think you're holding it unlawfully. In New York and Ohio, police can shoot you if they reasonably think that you are drawing a gun on them or about to shoot another member of the public. If and only of there is a reasonable perception of use of deadly force can the police shoot, and wherever you are the basic movements around a gun that will suggest that are the same.
So pwned.
I've recently learned that blowguns are illegal in the Commonwealth of Massachusetts, which is blatantly unconstitutional. I'm prepared to fight this law all the way to the Supreme Court, in native garb if necessary.
21 to 17. Open Carry might matter for other issues, like reasonable suspicion that someone is committing a crime or about to commit ongoing crimes, but the analysis in 21 (and the issue in the Tahir Rice case) is about permissible police use of deadly force, and the standards there will be the same -- indications that the person intends to use of the firearm in ways that indicate an immediate threat to someone's life -- regardles of whether or not you're in an open carry state.
Apparently shooting someone who's holding a pellet gun isn't all that uncommon.
The reality is that if a person has an actual gun, a police officer will never be prosecuted for shooting that person.
"Brandishing" is a bullshit distraction. The cop shot after 2 seconds on the scene. That's not enough time to establish the difference between holding and brandishing unless "brandishing" means "black".
I mean, as we saw in the John Crawford case, as far as prosecutors are concerned, once cops get spun up to shoot someone, the question of whether it's a real gun or whether they toy-gun-holding black person was breaking any laws go out the window.
27: Well, right. We're talking about whether Rice's making a hand motion toward his waistband in the context of someone having told the dispatcher he had a gun was enough to put the officer in reasonable fear for his life. This seems, to put it mildly, unreasonable to me, but it's hard to argue about.
25, 26: You think? White guy, Second Amendment demonstrator, open carry state, not immediately unambiguously threatening anyone? I doubt a cop would shoot someone like that, for obvious reasons, but I also think a cop who did would be prosecuted, for the same obvious reasons.
30: That would be an interesting test case.
If we as a society have failed at restricting access to guns, can we at least focus our efforts on restricting children's access to toys that are indistinguishable from guns?
Does it count if they're indistinguishable by virtue of being guns?
15: Yeah, you'd have to do something like look at the video yourself and use your own judgment as to whether the police officer's belief that he was in danger of his life was reasonable.
Right. I'm surprised that it sounds as though people haven't seen the video. While there's an early segment there in which Rice encounters an unknown person on the sidewalk and appears to be waving his (toy) gun around, that was half an hour before the shooting. By the time the police arrive, he's been wandering around kicking at the snow, occasionally pointing his toy gun around, laying his head down on the picnic table for a rest, and there's not a single civilian in sight, anywhere. He gets up moments before the cop car shows up, likely because he heard or saw them coming, and they immediately shoot.
Okay, maybe they thought they saw him going for the gun, but my question has been: isn't it more obvious police protocol in such a situation to pull up at some distance, hunker down behind your opened car door, and shout, "Police! Stand down! Put down your weapon!" and so on?
But this has been said numerous times before, a year ago: the cop car should never have pulled up so close, with the rookie-ish cop leaping out of the car immediately, in such a way that of course if the kid made any move whatsoever (other than what, falling flat to the ground?), the cop would arguably feel threatened.
53.2 and .3 get it right. Literally the entire case for the cops is as follows: "If you limit the analysis to the literal two seconds before the shooting, and ignore absolutely everything else, then it wasn't unreasonable from the point of view of a police officer right next to a suspect whom he reasonably believes has a gun and is about to shoot it at me at extremely close range to fire first." But everything depends on ignoring the run-up to those two seconds and isolating those two seconds as the sole period relevant to the analysis. The crazy thing is that there's a non-insane basis under current law for doing so, although it's obviously offensive to justice to have police create a situation in which an entirely unnecessary shooting becomes extremely likely through reckless tactics, and then be immune from criminal prosecution because of a perceived* legal requirement to completely ignore all surrounding circumstances leading up to the shooting. I can see avoiding a first degree intentional murder charge, but the idea that incredibly terrible police tactics in a situation where a shooting seems possible shouldn't be relevant to a negligent or reckless homicide charge against a police officer seems totally nuts to me. OTOH that may be the law.
This is a lot like the Trayvon Martin case in that respect. Nevermind that Zimmerman was the sole cause of all the trouble, and think about whether, in the second before he shot Martin, he thought Martin might hurt him. It does seem to be the law, and it's crazy.
The law says "reasonable person" when it talks about fear of harm and I think that has been abused in ways that very clearly meet the definition of "structural racism".
I mean, this case, joined by Sotomayor, Ginsburg, and Kagan, can be (I think mis-, but still) read to mean that you must simply ignore the issue of whether an officer provoked a shooting which would have been entirely unnecessary without the officer's own reckless conduct. As can (specific to Ohio) this case:
In support of her claim against Lt. Ellsworth, Livermore points to Billington v. Smith, 292 F.3d 1177 (9th Cir.2002), in which the Ninth Circuit held that a plaintiff's Fourth Amendment claim against police officers who used deadly force may survive summary judgment, even where the particular seizure is reasonable, if the defendant police officers acted recklessly in creating the circumstances which required the use of deadly force. Id. at 1189 (stating that "even though the officers reasonably fired back in self-defense, they could still be held liable for using excessive force because their reckless and unconstitutional provocation created the need to use force."). Although this circuit has not addressed Billington directly, we have rejected such an analysis. The proper approach under Sixth Circuit precedent is to view excessive force claims in segments. Gaddis v. Redford Twp., 364 F.3d 763, 772 (6th Cir.2004); Dickerson v. McClellan, 101 F.3d 1151, 1161 (6th Cir.1996). That is, the court should first identify the "seizure" at issue here and then examine "whether the force used to effect that seizure was reasonable in the totality of the circumstances, not whether it was reasonable for the police to create the circumstances." Dickerson, 101 F.3d at 1161 (quoting Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir.1992)). The Dickerson court reasoned:
The time-frame is a crucial aspect of excessive force cases. Other than random attacks, all such cases begin with the decision of a police officer to do something, to help, to arrest, to inquire. If the officer had decided to do nothing, then no force would have been used. In this sense, the police officer always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing. Id. (quoting Plakas v. Drinski, 19 F.3d 1143, 1150 (7th Cir.1994)); see also id. at 1161-62 (citing with approval Drewitt v. Pratt, 999 F.2d 774, 778-80 (4th Cir.1993) (rejecting a claim that an officer who resorts to deadly force in self-defense violates the Fourth Amendment if he unreasonably provokes the shooting by failing to identify himself as a police officer)); id. at 1162 (citing with approval Cole v. Bone, 993 F.2d 1328, 1333 (8th Cir.1993) (scrutinizing "only the seizure itself, not the events leading to the seizure, for reasonableness under the Fourth Amendment" because the "Fourth Amendment prohibits unreasonable seizures, not unreasonable or ill-advised conduct in general.")).
Sometimes the law is indeed an ass. But you can at least see where they got the idea to ignore the actual circumstances leading up to the Rice shooting.
35: Although, the situation that Zimmerman provoked (taking the version of the facts most favorable to his defense) was that he was down on the ground getting his head pounded against the cement. Having gotten to that situation was his own fault, but the fear of serious injury was reasonable, if that was the situation.
In this case, the officer needed to gin up some reasonable fear from a middleschooler moving his hand toward his waistband. It's not just that getting to that point was all the officer's fault, but also that the basis for the fear at all was pretty weak.
I guess, but once you've played the magic trick of "ignore everything but the fact that the cop thinks that the suspect has a gun (because the dispatcher hasn't told the cop that it's probably a toy), and that the suspect is reaching for what looks like a real gun, and the cop is inches away and only has two seconds to decide before facing possible death ... WHAT WOULD YOU DO??" then things get a lot closer.
The rule that you simply disregard police tactics leading up to an unnecessary confrontation in determining whether a shooting was justifiable basically allows you to manipulate the facts to create ticking time bomb-esque scenarios that can justify almost anything. "But he was about to shoot me! I mean, sure, that was when I drove up in my squad car twelve inches from his face for no reason and only had two seconds to react, but still, come on man, in those two seconds I totally thought he was gonna shoot me! Totally justified."
The system seems to be cops only get charged if they are acting with a criminal intent.
39: Well, there should be a consequence, like they lose their jobs and the city pays out the family. But, in the end, we're not in the realm of a criminal charge here.
It's the same problem with the Freddie Gray related charges. Mosby decided to proclaim a crime had been committed before the autopsy and investigations were complete. But it's increasingly obvious from the Porter trial that she's off in no man's land wrt to criminal law.
I guess, but once you've played the magic trick of "ignore everything but the fact that the cop thinks that the suspect has a gun (because the dispatcher hasn't told the cop that it's probably a toy), and that the suspect is reaching for what looks like a real gun, and the cop is inches away and only has two seconds to decide before facing possible death ... WHAT WOULD YOU DO??" then things get a lot closer.
Still not really close. (a) The kid was twelve. You can say that the cop didn't know that, but the fact that he looked twelve is still in the mix. (b) The kid wasn't doing anything with the gun when the police car pulled up, and the call was that a while back he was scaring people, not that anything had actually happened. "I'm going to kill a cop rather than be arrested for... doing nothing much"? It's not impossible, but it's got to be low odds. And (c) it was so incredibly fast. The video isn't clear enough to see exactly what Rice did, but there isn't time for him to have drawn or aimed the toy before the cop committed to shooting -- the cop had to have made his decision to shoot a split second after the car stopped. With that timing, he had to have been reacting to "His hand is moving toward the gun I either see or believe him to have," not anything more definitely aggressive. I think considering that a basis for "reasonable" fear is nuts -- not even close. It's a situation where it's possible that Rice, if he'd had a gun, could have shot the cop. But that doesn't it make it reasonable to expect that he was going to.
40: If the cop didn't have a reasonable fear for his life, he had criminal intent. He might not have thought of what he was doing as criminal, but the intent you need is intentionally firing a gun at a person.
but the fact that he looked twelve is still in the mix
Rice was 5'7 and 190 pounds or so. Everyone on that scene thought he was much older.
He's been pointing a gun around at a park. They fucked up the approach, no doubt. But if that person's response at the sight of the police is to immediately reach for his waistband and start pulling out what appears to be a firearm then absolutely it's reasonable to assume that person might mean you harm.
I wasn't using technical language, criminal intent in the sense of: acting with malice, bad motive, do something they know is wrong, etc.
I don't remember if I've told this story, but a kid from my school nearly got shot by a cop, and it would have been a tragedy, but I wouldn't have held it against the cop under the circumstances.
Also a pellet gun, also painted black to look realistic, people were playing Assassin, and the kid (whose name I've forgotten) was lurking around the 96th St. stop on the Lex hoping to 'kill' his target. Police officer stopped him and asked what he was doing, and the kid (high school junior, six foot with a beard) explained the game and was showing the pellet gun to the cop, no problem, everyone's calm.
Until the second cop appeared, and saw some guy pointing a realistic looking gun at his partner. Cop #2 drew his gun and started shouting, and it was pretty close before it got cleared up.
I wasn't there -- heard the story from the kid. But that sounds to me like a plausible basis for a reasonable mistake (which that police officer managed to avoid) about whether Cop #1 was in immediate danger of death. "I think this person I have just deliberately startled may be moving their hand toward what I think is a gun", on the other hand, does not sound to me like a basis for a reasonable fear of death.
Also worth reading, I think: Coates on legitimacy.
Actually I guess that would go better on the CPD thread. Oh well.
But if that person's response at the sight of the police is to immediately reach for his waistband and start pulling out what appears to be a firearm then absolutely it's reasonable to assume that person might mean you harm.
If that's your response to that video, you're part of the reason why law-abiding people are reasonably frightened of the police.
I honestly don't understand why on earth you'd react that way. You don't sound like an incompetent with a horrifying disregard for human life -- calling what Loehmann did by killing Rice a mistake based on a reasonable fear for his life comes down to saying that you might have made the same mistake under the circumstances, and I sincerely hope that's not the case. But calling it reasonable out of solidarity, as opposed to doing everything you can to distinguish yourself, as a competent, sane police office, from a horrorshow like Loehmann, makes it really hard for the rest of us to tell the difference.
I honestly don't understand why on earth you'd react that way.
Honestly, I feel like I'm trapped in some bizarro world conversation here. Seriously, if you approached someone and they looked at you and immediately started to pull a gun out of their pants you wouldn't be alarmed by that? Are strangers playing a lot of show and tell with their guns with you?
I disagree with both of you!
Saying, "they fucked up the approach, but," is ridiculous, because fucking up the approach in the manner that they did, given the "person with a gun" call, is a death sentence for the subject 99 times out of 100. There's almost nothing he can do, short of freezing his hands immediately (and who would do that when a car roars in front of them unexpectedly?) that couldn't be construed as threatening. They fucked up the approach, and killed the kid by doing so.
But if we do set that aside, then yeah, I don't think I agree with LB that Loehmann had much choice. Even an unskilled kid can pull and fire in what, a second? Second and a half?
Conversations like this make me hope that the gun nuts never get their widespread concealed-carry fantasies to come true, children are going to be getting shot in self-defense constantly.
I agree with Ogged, I think. Or at least it's a close question if you only look at those two seconds, but it's nuts as a matter of law and justice to (at least for some criminal charges) to look only at those two seconds, even though that may be current law.
LB's 42(c) stands: given the timing, the only possibility is that Loehmann pulled up with intent to shoot (or you could say "primed to shoot"; I'm not sure the distinction matters, or even exists). IOW, his assumption, pulling up, was that he was facing an armed criminal who was likely to shoot him. There was zero evidence for this (and this is where the open carry is relevant: being in a park with a gun is legal in Ohio; "waving it around" is subjective and not evidence of jack shit, and very much along the lines of "the car was driving the speed limit, which is probable cause": the cops get to claim any fucking thing they want is probable cause, and the system is set up to support them), but we know exactly why he would assume this.
"Reaching for his waistband" is a red herring, because the trigger was pulled the moment Rice moved a muscle, because of a reckless disregard for human life. Loehmann, in pulling up, mentally constructed a scenario in which any action by Rice other than throwing himself on the ground would be sufficient for shooting. That is, I don't mean the bad procedure of pulling up too close; I mean he went into the situation like a person approaching a spider with a rolled up newspaper. He had one plan in mind, and he executed it.
50: So how do you explain the numerous instances of people brandishing actual guns near cops who don't get shot? Are all of those cops being negligent?
Also agree with 51, though who would disagree with it -- of course lots more guns in public mean more people getting shot in unnecessary self-defense.
50: If I approached someone, and I thought they were starting to pull something that I thought might be a gun out of their pants, no, I would not consider myself entitled to kill them without being surer of what was going on.
But chopping words is stupid. This is on video, and you can see how fast Loehmann decided to shoot a middle-school kid. If that looks like reasonable fear to you, I do not think you should be on the street carrying a gun, and I'm really glad you're not doing it in the same city as my teenagers.
I doubt you really do think it was a reasonable mistake -- I think you're bullshitting out of solidarity, and you really wouldn't have been likely to do the same thing in the same situation. At least I hope you're bullshitting.
52: follow up, and as long as they are black you can probably get a agent of the state to stand in front of news cameras and smear them. Remember all that orange tip being removed nonsense, it was totally irrelevant to the case and yet was basically the first fact to be released to the news about the case.
There's almost nothing he can do, short of freezing his hands immediately (and who would do that when a car roars in front of them unexpectedly?) that couldn't be construed as threatening.
Which is what makes reacting to it as a threat unreasonable.
how do you explain the numerous instances of people brandishing actual guns near cops who don't get shot? Are all of those cops being negligent?
In almost all those cases, the cops are at a distance from the person that gives them time to assess the situation. If the cops had had that distance here, this never would have happened. Losing that distance was totally nuts, absolutely gross negligence or recklessness IMO in a situation where people could easily get killed. But if you completely ignore that fact, then it's not crazy to think that if you're a cop right next to someone who is pulling out a gun on you and you have no time to react, you can shoot. Like I say, the justification relies on playing a magic trick that allows you to winnow out the actual circumstances to the point where the decision to shoot seems reasonable. But, arguably at least, the current law requires you to do that cop-protective magic trick.
Saying, "they fucked up the approach, but," is ridiculous, because fucking up the approach in the manner that they did, given the "person with a gun" call, is a death sentence for the subject 99 times out of 100.
My personal guess is that they were so bent on looking for someone with a gun in their hands that they start driving into the park thinking maybe he's left and then realize on the approach that the the person they're driving up to is the subject of the call. Still a huge fuckup.
60: I'm not getting why the distance would have helped. Loehmann shot Rice because he was 'reasonably' afraid that he was drawing a gun. Bullets travel distance -- if Loehmann had been afraid of Rice from 20 or 50 feet away, why wouldn't he have been equally 'justified' in shooting him then? (Admittedly, Rice would have been more likely to survive, probably. But I don't see why he'd be less likely to have been shot at.)
a middle-school kid
Inject that into the conversation as many times as you want but it still wasn't apparent to anyone actually on that scene.
If that looks like reasonable fear to you
I don't see that we're going to find a common ground here. You seem to think that police responding to a call of a man pointing a gun at strangers shouldn't feel threatened by that person immediately pulling a gun out of their waistband at the sight of the police. Good luck with that.
If you're sticking with the position that shooting Rice under the circumstances in the video was a reasonable mistake that you might have made, I really am glad you're not on the same streets with my kids.
62 -- because they'd have had time to shout a warning, approach on foot or stay in the car from a distance where being shot, especially quickly, is extremely unlikely, make certain that he was in fact pulling out a gun before firing, i.e., do all the other things that normally-trained cops do as a matter of course when presented with similar situations and 99% of the time do not result in someone getting killed.
65: Again, bullets travel distance very quickly. If you're 20 feet away from someone who you 'reasonably' think is going to shoot you, how do you have more time than if you're five feet away? I really don't get it.
62: Because two of us are now approaching and we can call out from a position where we have some cover. We now are operating from where Rice is much less likely to be startled, we have cover, advantage of numbers, mobility, advantage of distance, etc. I'm operating from where I have the luxury of maintaining an advantage even if he starts to pull the gun out and don't have to engage him immediately.
The approach in the car takes all of that away.
My understanding of the S Ct precedent is that it is not crystal clear controlling on the issue RT is raising, so that absolving the police of any duty to not escalate is not in fact settled, controlling law. Raises an interesting ethical question for the prosecutor - on one side a trained, fully armed professional, on the other a 12 year old.
My son was nigh on 6 ft at 12, I was not relentlessly worrying him with how to respond to cops although we live smack in a city and he was daily out on his own. Does anyone of us really think ANY part of this from the 911 call on would have happened if the victim wasn't black????? Also everything Moby & LB have said.
So it's not really about the distance. It's about not startling someone and then treating their reaction as a threat, and about attempting to communicate before killing them.
68: Yeah, when I bring up my kids, I'm not really afraid of the police on behalf of my kids, it's their less white friends I worry about.
Note interesting in first para bitterly ironic.
50, 61, 63, 67: You've been around here since before you were a cop and I've respected your comments over the years, but I am totally with LB here. If a good guy who becomes a cop is thinking like this within just a few years, there is something deeply, deeply wrong with police training and culture in this country. Not killing innocent middle schoolers is a really, really important part of the job, or goddamn well should be, and it's pretty distressing that you don't see that.
There is a negative correlation between distance and likelihood of actually getting shot. And it's generally safe to assume a cop, even a shitbag cop, has an advantage in accuracy-over-distance.
a 12 year old.
A baby-faced twelve-year-old, that the officer was a couple of feet away from. I bet your six-foot twelve-year-old didn't look like a grown man despite his height: my six-foot fourteen-year-old doesn't. And didn't when he was a 5'7" twelve-year-old like Rice.
Does anyone of us really think ANY part of this from the 911 call on would have happened if the victim wasn't black?????
I work a city with almost no black people and everyone just totally gets a pass on pointing guns at random strangers. No one says shit, it's awesome.
He wasn't pointing a gun at anyone when Loehmann killed him.
The distance also obviously matters for reaction time. The only reason why the shooting-within-two-seconds was even sort of plausibly reasonable (again, if you weed out all other circumstances) was that from that distance you really don't have time to do anything other than shoot back immediately. From cover, and from further away, obviously you can take longer --maybe a few seconds longer, maybe more -- to assess the situation, which here almost undoubtedly would have saved Rice's life.
76: perfectly honest, sincere question - would you have typed that if you knew I was black?
Not killing innocent middle schoolers is a really, really important part of the job
Solid point, and I have in fact lost count of how many calls like this I've been on and not shot anybody. This one shouldn't have happened either. All I'm pushing back on is the claim that if someone has been pointing a gun at people, that it's unreasonable to feel threatened by that person immediately pulling a gun out from a few feet away.
Is it totally inappropriate to wonder if gswift would have shot Greedo? (I believe Greedo had his gun drawn through the whole scene, in every version.)
The whole "the police thought he was older" does seem to be putting a lot of faith in the testimony of people whose initial account of the event was totally fabricated.
This article also gives more detail about standard training for similar situations (which are not that unusual):
Experts said the way the officers approached Tamir by speeding the car up to him and stopping within feet of where the boy was standing was tactically unsound. When approaching someone who's either holding a gun or indicating that they have one, police are trained to first take cover at a safe distance and create a barrier between themselves and the other person. This usually means ducking behind the police cruiser or a building.
Next, officers should draw their weapons and command the suspect to drop their gun and get on the ground. The dialogue that happens between an officer and the suspect is what some experts call the most important aspect of police work.
If the suspect complies, one officer should then search the suspect for any additional weapons while the other officer still has his or her gun drawn. If a concealed weapon is found, officers should place cuffs on the suspect.
Officers should keep their guns in their dominant hand, leaving their other hand free for other actions, including using their radios to call for help. If the suspect doesn't follow orders and makes a threatening movement, that's when an officer must make a split-second decision whether to fire.
Though officers may have less than a second to decide whether to shoot, they need to take various factors into account. They must consider the suspect's size, age, known history of violence or mental disability, availability of weapons and the suspect-officer ratio.
When feasible, officers should warn the suspect that they're going to shoot if they continue to present a threat.
If the suspect points a gun at someone, or reaches for a gun in a way that indicates they're going to shoot, police are allowed to fire.
Police are trained to shoot at "center mass," or a suspect's torso where many vital organs are located.
In the vast, absolutely overwhelming majority of these situations, no one gets killed by police. That it did happened here was the result of terrible tactical decisions by (what look to be) very bad and poorly trained cops, who put themselves in a situation where they can now argue that they were required to shoot within seconds without doing any of the above.
that person immediately pulling a gun
I haven't watched the video in months, but I don't remember this being at all clear. He makes a motion with his hands, but it could be putting his hands at his side, it could be hiding the gun, or it could be puling the gun. Not that it matters much, but let's not act like it's settled if it's not.
that it's unreasonable to feel threatened by that person immediately pulling a gun out from a few feet away.
Have you watched the video? Loehmann shoots him so fast, he had to have been reacting not to 'Rice pulled a gun out' but to 'made a motion that looked as if Rice might be about to'. And that's a big fucking difference.
I told the story of the kid from my high school as something that would have been an understandable mistake. If Rice had been really insane, and had reacted to the police by pulling a realistic looking gun out and aiming it at them, this would be horrifying and sad, but I wouldn't want anyone charged. But that really, really, really isn't what happened.
85 - Right, but to be a justifiable shooting under the current standards, you just have to reasonably believe that the guy is pulling a gun on you and that you need to react immediately. The guy doesn't in fact have to have been pulling out a gun so long as you reasonably think he's doing so and you reasonably need to react at once. Which, from the distance they were at, and given the timing necessary, maybe so.
but to be a justifiable shooting under the current standards
Yeah, that's why I said it doesn't matter much, but no fingers on the scales anyway.
87: Bullshit. That makes shooting anyone who makes any ambiguous motion toward anything that might be a concealed gun per se reasonable, and that's fucking nuts.
What I want, first of all, is for instances where police officers shoot people to be presented to grand juries using exactly the same procedures etc as when drug dealers etc shoot people.
I have no patience whatsoever for prosecutors presenting any case to a grand jury hoping -- that is trying -- for no indictment of even a lesser charge.
that makes shooting anyone who makes any ambiguous motion toward anything that might be a concealed gun per se reasonable
No it doesn't, not in all circumstances. But if I'm two feet away from a police officer, and the police officer has good reason to think that I have a gun, and I make a motion that looks like I'm going for my gun, then yes the cop can shoot me and in fact I'd expect that to happen 9/10. He doesn't have to wait for me to actually pull out a gun and point it at him.
85, 86: You can see the upward motion of the arm and shoulder in the still frames. And after Rice goes down the gun is on the ground near him and they kick it away. He either had it all the way out or was in the process of drawing the gun.
http://i1.nyt.com/images/2015/12/20/us/tamir-listy4/tamir-listy4-tmagArticle.png
This remains nuts. And, of course, if those are the rules it's legitimately open season on anyone who's legally open carrying. There are a lot of bodily movements that could be interpreted as the beginning of 'going for a gun', and police officers don't have a special right to kill people out of fear, just the same one we all do. It's a surprise the streets of Ohio aren't running with blood.
80: Which is what I would have expected of you, and your point is valid in its very narrowest form. I'm still having a hard time with the idea that the narrow point you're making is one that belongs here, because it reads like defending misunderstood cops against civilians who just don't understand what you do and therefore shouldn't be judging the decisions you have to make. I think that's wrong and dangerous. There seem pretty clearly to be some systemic issues with police training and doctrine in this country, largely around tactics designed to protect officer safety, that interact with the stupidity, incompetence, and racism of the crappier cops and departments out there to produce too much of the sort of damage that police departments are supposed to be there to protect against. That's not fixable unless sensible people inside and outside police departments can have rational conversations about what's wrong and what needs to change.
'Upward motion of the arm and shoulder' establishes 'was in the process of drawing the gun'? How's that work?
That's not fixable unless sensible people inside and outside police departments can have rational conversations about what's wrong and what needs to change.
Right, and part of fixing what needs to change includes not accepting shooting children with toys as a reasonable mistake that shouldn't be punished.
This remains nuts
Totally agree. To Charley's point, it seems beyond clear that police shootings should be handed off to a non-local special prosecutor. And I would hope that such a person could have charged at least some kind of negligence in the way they approached this kid.
If those are the rules it's legitimately open season on anyone who's legally open carrying. There are a lot of bodily movements that could be interpreted as the beginning of 'going for a gun', and police officers don't have a special right to kill people out of fear, just the same one we all do. It's a surprise the streets of Ohio aren't running with blood.
Not at all. They aren't because police officers are trained to respond to these kinds of situations in ways designed to minimize the chances of killing people in situations like this one -- which are relatively common. They are trained to avoid putting themselves in positions where shooting people in situations like this is arguably (from a criminal law standpoint) reasonable or necessary. The cops in the Rice case chose to completely ignore those rules and training.
But, again, just focusing on the two second interaction (which I don't think you should do!), then, yes, if someone is two feet away from a police officer, is reasonably believed to have a gun, and reasonably seems to be pulling out the gun, then yes the officer can shoot, and I'd expect basically all police officers in the US to do the same.
AND Loehmann really didn't belong on a police force.
But, again, just focusing on the two second interaction (which I don't think you should do!), then, yes, if someone is two feet away from a police officer, is reasonably believed to have a gun, and reasonably seems to be pulling out the gun, then yes the officer can shoot, and I'd expect basically all police officers in the US to do the same.
I reiterate that police officers have no special right to kill in self-defense. If it's reasonable for a cop, it's reasonable for you or me -- the law of self-defense is the same. So if you'd expect any police officer to shoot under those circumstances, you should expect any armed citizen to shoot under those circumstances. Anyone in that part should reasonably have blown the kid away if they thought he had a gun. Does that really sound reasonable to you?
I mean, we're arguing a ridiculously narrow point here, which feels indulgent and wrong. This was many fuckups, and a kid got killed.
It has rarely felt more appropriate to say: you started it.
96: I'm on your side here! But also trying to make sense of how a generally sensible person could possibly think otherwise and to figure out how to communicate across that divide.
To the best of my misty recollection from long-ago crim class, acting in a grossly negligent manner that gets someone killed generally amounts to some form of culpable homicide. That sure looks to me like what happened here.
I'm on your side here!
I do get that, sorry. I'm angry enough to be flailing a bit.
104: Understood. It's part of your charm.
There seem pretty clearly to be some systemic issues with police training and doctrine in this country, largely around tactics designed to protect officer safety, that interact with the stupidity, incompetence, and racism of the crappier cops and departments out there to produce too much of the sort of damage that police departments are supposed to be there to protect against. That's not fixable unless sensible people inside and outside police departments can have rational conversations about what's wrong and what needs to change.
This is true, but in this specific case the tactics and training that would have avoided the Rice incident are not mysterious or esoteric or something only the most liberal and enlightened police departments engage in. Using absolutely totally standard police tactics even in dumb ass shitty abusive police departments would have avoided the killing. The cops involved in shooting Rice appear to have been unusually shitty cops who shouldn't have been hired by Cleveland. So to avoid this particular case, most of what needs to change is "follow basic tactics in common situations." As I say, I think that some form of criminal or serious civil liability should attach for failure to do so. I don't think GSwift is arguing otherwise, at all.
f it's reasonable for a cop, it's reasonable for you or me -- the law of self-defense is the same.
No it's not. For whatever reason, one thing we've learned from these cases is that prosecutors and courts interpret the Supreme Court's Fourth Amendment standard for unreasonable use of force for police officers to set the standard for justification for a police shooting under State criminal law. That's different than the law of civilian self defense. I certainly agree that there's no formal legal reason why that has to be the case -- States could adopt tougher standards for what constitutes justification for police shootings in criminal prosecutions than what the US Supreme Court has said the Fourth Amendment requires. But that appears to be the way all prosecutors and cops and the public interpret the rules.
The flailing? Think of me as the New York State Bar's equivalent of Kermit the Frog.
What I was going for, when I snapped at you, was a management principle that you get the errors you tolerate. If you manage an organization with the assumption that a certain class of errors is inevitable, no one's perfect, you're going to get errors in that class. If you manage with the assumption that errors of that type should literally never occur, which includes treating them as completely unacceptable when they do occur, you can get the incidence down much, much lower. (I'm recalling having seen some backup for this in a dsquared post, maybe on that poor Brazilian guy the London cops blew away thinking he was a terrorist, but I can't find it.)
Calling this kind of mistake reasonable, the way gswift and Halford are, amounts to ensuring that it's going to keep happening on a regular basis.
I certainly agree that there's no formal legal reason why that has to be the case
And there's no statutory basis for it (in the states I'm aware of). There sure as hell is a double standard as applied, but it's a lawless one.
(There are special police officer rules about using deadly force to prevent a crime -- that's something police can do under circumstances where a citizen can't. But not, in the states I'm aware of, a different standard for deadly force in self defense.)
In more positive indictment-related news, Cosby's been charged with sexual assault.
I107 - 'm not saying that the mistake is reasonable. I'm saying the opposite of that -- it was a big time unreasonable fuck-up by the Department, including both cops on the scene and the dispatcher. All I'm saying is that current law (may, but seems to) require winnowing out the unreasonable parts so as to get to a story of a sort-of justifiable shooting by focusing on only a tiny part of it -- the two seconds right before the killing, which came after the cops had put themselves in a position where they were next to Rice and vulnerable.
That this is the current law is a problem. That there's no even potential criminal liability (arguably) under current law for that kind of unreasonableness, gross negligence, or recklessness is a big problem and a hindrance to enforcing better police practices. Especially in cases like this where the mistake truly was unreasonable by the standards of totally normal police practice.
And I'm saying that even with that winnowing, it's still nuts. Loehmann had to be in the process of drawing and firing as he got out of the car -- he couldn't have been 'reasonably' reacting to what Rice did as anything beyond seeing that Rice was moving somehow.
I don't think GSwift is arguing otherwise, at all.
And I'm not! Fire those guys and cut a huge check to the Rice family. Like you, I just think most people are wrong that this meets the level of a crime under current law.
For it not to be criminal, you're both needing to argue that Loehmann reasonably feared for his life in a manner that justified him in using deadly force in self-defense: that although his fear turned out to be unjustified, that he was making a reasonable mistake.
You can't argue that it wasn't criminal without arguing that it was a reasonable mistake.
112 -- well, agree to disagree I guess. But I'm pretty sure that if the cops reasonably think I have a gun, and I make a move that reasonably seems like I'm going for my gun, and I'm two feet away from a cop, I get shot 99 times out of 100 by any policeman in the United States. To be 100% honest, I'm not even sure what the alternative rule would be -- does the cop need to wait for the suspect at that range whom he thinks is pulling out a gun to clearly point the gun at him before shooting back? That for real does seem like a rule that would produce a lot of dead cops.
But I do think this is a fairly minor point and kind of a sideshow. The bigger point is that we need to impose civil and IMO some form of criminal liability on cops who recklessly provoke situations where this kind of thing happens. That's where the real policy action is.
Is "reasonable" defined as "some random guy said so"? Because then anybody with itchy balls is living under a death sentence.
The bigger point is that we need to impose civil and IMO some form of criminal liability on cops who recklessly provoke situations where this kind of thing happens.
This, I can agree with you on. I disagree that the mistake in this case was reasonable, and I think Loehmann's actions were criminal under current law, but explicitly changing the law to impose liability on police who injure people in the course of unnecessarily and incompetently provoked confrontations would be fine with me.
107: I would have said "righteous indignation in a good cause," but "New York State Bar's equivalent of Kermit the Frog" is a better image.
Agree completely with your analysis of the consequences of accepting this sort of error, but I think there's more going on that whether or not this particular screwup is criminal or not. I may be wrong about this next part -- and GSwift is welcome to correct me if I am -- but my strong impression is that police training and tactics around officer safety lead to treating way too many people as potential threats way too early in the interaction, and to creating situations where it's much more likely that innocuous actions by subjects/suspects will be perceived as threatening and met with force. I think fixing that requires some rebalancing of how police officers are trained to think of their own safety in relation to the safety of the people they're dealing with. But you're never going to get there if what police officers hear when you start down that road is that you're trying to get more of them killed.
115.last: But training cops to shoot before a well-trained attacker could complete the movement and shoot them seems to lead to too many dead non-cops. I don't know exactly what the answer is, and I may be talking out of my ass, but my assumption is that good cops are applying a whole lot more situational awareness in deciding whether to pull a trigger than just seeing an ostensibly armed suspect moving in a potentially threatening way and opening fire.
Because then anybody with itchy balls is living under a death sentence.
We all are, Moby. We all are.
118 last -- good -- or even basically mediocre to poor cops -- are trained to put themselves into situations where this kind of analysis is unnecessary. Take a look at the article linked in 84. It may well be the case that cops in certain situations are too risk-avoidant and that this causes unnecessary harm to civilians. But as to this particular issue -- how do you deal with a suspect who has a gun -- there are pretty clear protocols for how to avoid killing the suspect and deescalating thr situation, and those protocols are well understood and standard and generally do not result in killings. There may be issues where you need total change in police cultures to produce change, but this isn't actually one of them, it's more like "don't be an idiot who drives up right next to the guy you have been told has a gun."
I just watched the video, which I'd never seen before, after reading this whole thread. Given the strong disagreements expressed above, I honestly thought it would be a little more ambiguous. Anyone defending that cop's actions is fucking insane. He just drives up, jumps out of the car and shoots the kid. It was clearly a planned attack.
Just a thought experiment: suppose the exact same scenario unfolded, but that the passengers in car weren't two cops, but two teenagers from a rival gang.* They claim they jumped out just to "interrogate" the kid but he went for a gun and so they shot in self defense. Is there a jury in America that would believe their story? Would anyone here still be arguing that their decision wasn't criminal?
*not at all to imply that the victim here was in a gang. Just a thought experiment. Honestly prompted by the fact that footage of a planned gang attack is actually what the video looked like.)
I don't see how you get "reasonable" with a shooting that quick based on a description over a phone call. Even if you believe the caller was honest and correct, how do you even know you have the guy called about? If this shooting were actually legally defensible, everybody in public should look over their shoulder for cops before they go for their wallet.
122.1 also seems right to me. If there had been a genuine exchange between the cop and the kid before the shooting (of words, I mean), and the kid had actually gone for the gun then, yeah, unfortunate but probably justifiable. This was more along the lines of someone getting shot for flinching.
122 -- again, under what people seem to think is current law, you're not allowed to factor in the "driving up" part. That part is crazy. Once there, the cop sees what he thinks is someone going for a gun at close range, gets out and fires. That part is less crazy if you isolate it to that part alone AND assume that the cop only has two seconds to make a decision.
The basic difference from the gang scenario is that in the gang scenario you wouldn't be compelled to ignore the driving up part. Instead, it would be evidence that went to homicidal intent and negated an inference of self-defense. But that apparently doesn't apply here.
Also, I honestly don't think it was a "planned attack" in the sense that they were driving up already intending to shoot the kid. Even if they are terrible cops, why would they possibly do that? At a minimum, they would have to know that it would lead to enormously more hassle for them than taking a more tactically appropriate response. I think they were lazy, didn't want to get out of the car in the snow, were idiots, and panicked quickly. Basically, they killed someone through reckless tactics. It's not at all a justifiable shooting, except in the ridiculous sense that you're supposed to just ignore everything that the officers did to create the situation in which they found themselves. That's a crazy rule, but it does seem to be the rule, or at least a lot of cops, prosecutors, and judges think so.
The Coates piece linked in 47 is very good. (Predictably.)
Leave aside the driving. The only reason he has to think somebody is going for a gun is a physical description conveyed through a phone call. A conversation so limited in content that the callers estimate of the person's age was off. If that's reasonable, literally anybody of that same gender and race could be shot if they grabbed at themselves or something.
I'm giving the cop the benefit of the doubt and assuming he saw something that looked very much like a gun tucked into the kid's waistband.
Not sure about 128. I can't really tell myself from the video but as GSwift says above it seems likely (and I think they testified to, but I don't know) that they saw the gun or what they thought was a gun tucked into the kid's waistband.
s/b "estimate of the person's age was left off" not "was off".
Hey, gswift, how much do the dispatcher's omissions actually matter? Is "caller says probably a kid, probably a toy," something you keep in your head, or do you not trust the caller and go in assuming worst case, or what?
132: Definitely something you keep in your head because nobody wants to shoot a kid.
I note that the caller could look at Rice and see that he was a kid. I think it would have been reasonable of Loehmann to see the same thing -- he was certainly close enough to get a good look.
I still think that reasonable perception of threat requires linking the motion toward the waistband with the report that the person in question had a gun (brandishing it or not). And I don't see how you do that in this case. I mean, they did find the guy that the police were called about, but plenty of times police have a valid report of some illegal activity and grab the wrong guy. It's not something you can ignore and be "reasonable." Everything happened so fast, there's just no way that could have happened here. It's barely a step up from shooting into a crowded store because somebody called in a report of shoplifting.
I'm assuming Loehmann saw the gun.
I just watched the video again and it's so fucked up. Loehmann looks like he stumbles or panics and winds up near the back bumper after firing. And after they've shot Rice, they take cover behind their car.
And they stop on snowy grass without skidding, which means either they were going pretty slowly, or started to slow down well in advance, which then means that they had time to decide not to stop a few feet from Rice.
two notes: of which I'n only going to comment on one: there's a bunch of Lords precedent issued in the face of murderous terrorists and it's kinda worrying that the US needs more leniency than a police force facing an actual murderous terrorist insurgency.
two notes: of which I'n only going to comment on one: there's a bunch of Lords precedent issued in the face of murderous terrorists and it's kinda worrying that the US needs more leniency than a police force facing an actual murderous terrorist insurgency.
It seems from here as if the underlying assumption of the law as it applies to these cases in the USA is that the fundamental duty of the police is to keep the lid on a perpetually bubbling black insurgency. That is the prime directive, to which all others are subject.
With that said (and obviously this is the wrong Prime Directive) gswift and tigre appear quite right in their various ways. An unprofessional cop in a morally bad system is going to make bad decisions which -- with a little sympathy -- we can well understand. I've never been a cop but I wrote a book about them a long time ago (the unarmed, London force at the time shocked by riots which had left one policeman stabbed and partially decapitated). The thing that struck me most was how much they were constrained, for good and evil, by the expectations of the society around them. Policing was no more about the random application of force than flycasting is.
If the cop in this case did not think the boy was the armed suspect they were looking for - and so pulled up much too close - and only then sees "the man has a gun" it's easy to imagine a switch to "Holy shit, panic!" mode.
That's morally wrong, unprofessional and should be punished. All agreed. The legal system which says that he shouldn't be judged in a wider context is warped. Agreed. But it's still much more like a bad day at the office than driving up with murderous intent. Just that in his office, you're armed with a lethal weapon.
Finally, whoever said that gang shootings should be judged in the same way had a real point. I'd be astonished if some large proportion of firearm murders didn't have the same almost accidental quality to them. A gun can exclude all the good choices from a situation: two guns certainly can, even when one is a toy.
Basically the fact that they drove up at a moment when he had his hand near his pocket or waist means he's dead. Don't move at all? His hand was near the gun. Start to put your hands up? Motion like drawing the gun, even if his hand wasn't on it. Because of the action of the cops there is literally nothing he could do to avoid being killed, aside from 1) not carrying the toy gun in the first place, but carrying even a real gun is something the state of Ohio has decided is perfectly fine; or arguably 2) not being black.
Also, I honestly don't think it was a "planned attack" in the sense that they were driving up already intending to shoot the kid
Is there no evidence from recording of the police radio, something like "we see the suspect", about what they said before driving up? Because per 128, if they hadn't even positively IDed the subject of the call, there's a good chance they end up killing a random (again, likely only if black) person at the park who was indeed scratching their balls. Do the cops avoid indictment in that case too? Oops, didn't even have a gun, but we drove up and got scared.
"Oops, didn't even have a gun, but we drove up and got scared" is what actually happened in this case.
Is "don't shoot civilians unless they are actively firing upon you (or someone else)" really such an unreasonable rule? Everyone upthread seems to dismiss it out of hand. I understand cops don't want to get shot; no one does. But it's a risk of the job, and minimizing that risk should not take priority over protecting civilian lives.
Forget that this is a kid and he didn't even have a real gun--look at the video again and imagine it's a man with a pistol. There are lots of people who have grown up in conditions where the appropriate and instinctive response to having people suddenly jump out at you like that is to draw a weapon. That doesn't necessarily mean you're going to start shooting, but you want to have the weapon in hand as you assess the situation. Your might be about to get jumped. Or, everything might be okay, and you can put the gun down. Unless it's the cops, because then you're going to have been murdered as soon as you touched your gun.
If the cop in this case did not think the boy was the armed suspect they were looking for - and so pulled up much too close - and only then sees "the man has a gun" it's easy to imagine a switch to "Holy shit, panic!" mode.
What does that get you? As noted in the OP, it's perfectly legal to carry a gun around in Ohio. Unless you are brandishing it. Or twelve. But "I shot him because he was too young to have a gun" probably isn't the kind of argument you want your lawyer to be making on your behalf.
(143 not to imply that the video shows Tamir moving to draw his (toy) gun--I don't think it does. I just meant that, in those circumstances, even a fully drawn weapon shouldn't provoke immediate fire. Take cover and give the guy a second to calm down.)
142- Well, yes, but at least he was the subject of the 911 call. That almost seems like nothing more than luck based on the tactics of the cops, they could have just as easily killed some other kid who happened to be walking there at the wrong time.
That doesn't make it any better that they killed Rice, but the idea of out of control untrained cops is more resonant when you die just for being in the wrong place (imagine if the guy in the link in the CPD thread had been killed.) Of course I'm sure if they had killed a random bystander we'd hear about something he'd been doing wrong to deserve it too.
I'm sympathetic to the idea that police ought to have some extra protection from criminal prosecution for errors in snap judgement, but the current level of deference seems extreme.
I'm sympathetic to the idea that police ought to have some extra protection from criminal prosecution for errors in snap judgement,
I'm really not. Exercising good judgment in violent, stressful situations in order to protect the public is precisely what the police are trained for and paid for. The police should not be more entitled to injure or kill innocent people out of mistaken fear for their own safety than civilians are. I'm not arguing they should be held to a higher standard of bravery and good judgment than the person on the street, but I am vehemently opposed to any suggestion that they should be held to a lower standard.
And while such a lower standard (that is, finding police actions to be justifiable self-defense where a civilian doing the same thing would be criminal) does seem to be applied by the courts, it's not in any statutes I'm aware of, which is where criminal laws are supposed to be set.
Has the Supreme Court made its notion of prosecutorial discretion supersede state laws, or is that just the default in absence of law or when suing based on the Constitution? Wondering if there could be a dystopia where states pass stricter laws governing police and SCOTUS voids them.
I don't think cops should be held to a lower standard than civilians, but I do think reasoning about negligence and fault needs to be probabilistic. If a mistake is something a reasonable person would make one in ten times, and cops are put in that position often, then I don't think it's something that should be criminally prosecuted. You can't just blame the individual for society putting them into a position that will inevitably lead to tragic mistakes. It's like prosecuting parents who forget that their kid is in the back seat: we made laws that we knew would lead to that happening once in a while and we can't then turn around and put all the blame the unlucky one.
