American Law Enforcement Officers’ License to Kill: We Need To Revise It

October 18, 2015 § 1 Comment

Unarmed Victims of Police Violence:  The Constitution and Our Criminal Justice System

This week we learned of two new episodes relevant to the present national conversation about our criminal justice system and, especially, the nature of  the relationship between citizens and police.  Both episodes are evidence that fundamental changes are necessary, not only in our laws,but also in our cultural attitude toward this subject.

A Polceman Shoots A Child Armed With a Toy Gun

In Cleveland, Ohio, a police officer shot and killed a 12-year-old boy playing with a toy gun in a public park.  The officer responded to a 911 call from a person who reported a person brandishing what appeared to be a gun.  The caller stated that the “gunman” appeared to be a juvenile and that the gun might be a toy.  This information was not conveyed to the police officer.  The officer drove to the park, claimed he saw the child make a “move toward his waistband” and opened fire.  As shown by the camera that recorded the incident, the shots came 2 seconds after the police car arrived at the scene, obviously not enough time for the officer to do more than aim his pistol at the kid.

The Cleveland police department launched an investigation into the event.  The investigation, for reasons neither apparent nor disclosed, went on for eleven months.  Yesterday, reports written by two men described by the District Attorney as “experts”, were released.  Both concluded the officer was justified in shooting the child.  Both “experts” had expressed their opinions earlier during interviews after the shooting.  Both had defended the officer’s conduct and judgment. The District Attorney said both reports would be presented to the grand jury considering whether or not to indict the officer for wrongfully killing the child.

The District Attorney insisted that he would neither approve nor disapprove the conclusions reached in the reports.  The parents of the child have asked that a special prosecutor be appointed to handle the grand jury presentation of the case.

Here is a link to an ABC News account of the shooting:  http://abcnews.go.com/US/cleveland-cops-recklessly-shot-boy-12-toy-gun/story?id=27402837

Eaton County Michigan Deputy Sheriff Tasers and Shoots 7 Bullets Into Unarmed 17-year-old Boy After Stopping Him For Flashing Headlights At Oncoming  Car

On June 17, 2015, Deputy Sheriff Jonathon Frost stopped Deven Guilford, a teenage boy, for flashing his car’s headlights at the Deputy’s oncoming car because the Deputy car’s headlights were unusually bright.  This, according to one (disputed) interpretation of a local ordinance, was a traffic violation for which a ticket could be issued.  The boy did not have his drivers’ license with him.  Instead of admitting that he didn’t have his license with him, the boy argued with the officer and refused to  comply with his instructions.  After repeatedly ordering the boy to comply, the officer told him to get out of his car.  The boy at first refused, but finally got out of the car.  The officer ordered him to lie down on the ground and he did so, but tried to make a phone call on his mobil phone instead of putting his hands behind his back.  The officer grabbed the phone and kicked it away.  The boy objected and appears to have gotten to his feet, at which point, the deputy tasered him.  [There seems to be some dispute about the tasering.  One account is that the taser did not actually work.]  A scuffle ensued and the officer was struck by the boy multiple times and sustained minor cuts and bruises to his face.  The officer drew his pistol and shot the boy seven times, killing him.

The County Prosecutor declined to file any charges against the officer and returned him to active duty.

Here is a link to one account of the incident:  http://www.copblock.org/129681/mi-cop-kills-unarmed-teen-during-traffic-stop-for-flashing-lights-no-charges/

Here is a link to several pictures of the officer’s bruised face:  http://interactives.wlns.com/photomojo/gallery/20157/361569/officer-frost-injuries/officer-frost-injuries-march-1/

Criminal Justice In America:  The Constitution, The Cops and Our Culture

The proper beginning point in this or any discussion about the boundary between individual liberty and government power is the Bill of Rights.

The Sixth Amendment of the U.S. Constitution states:

Article the sixthThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” [emphasis added]

The Civil War settled the boundary lines limiting the sovereignty of states to abuse or violate the right of citizens.  It did so by adding amendments to to the Constitution, among them, the Fourteenth Amendment:

AMENDMENT XIV

Passed by Congress June 13, 1866. Ratified July 9,

Section 1.

All born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. [emphasis added]

Section 2.

* * *

Section 3.

* * *

Section 4.

* * *

Section 5.

  • * *”

When Does a Law Enforcement Officer Have a Right to Kill?

In Tennessee v. Garner, a Supreme Court decision rendered in 1968, the Court stated the limits on a police officer’s right to kill a person.  That case involved a fifteen-year-old child who had stollen $10 from a home.  When the policeman arrived, the woman who lived there was outside complaining about the theft.  The boy was on the porch and, disregarding the officer’s shout to stop, began running away.  As he started to climb over a fence and escape, the officer shot and killed him.  The officer acknowledged that he did not believe the boy was armed, but defended his decision to kill him as the only means of apprehending him.

The Supreme Court ruled that the interest in making an arrest when there was no apparent risk that the suspect posed a risk of killing either the officer or anyone else was not reasonable and, therefore, violated the 5th and 14th Amendments to the Constitution.  Tennessee had a law that authorized the use of deadly force to effect an arrest when the suspect was thought to be guilty of a felony.  The Court held that law to be unconstitutional.

Here is the essence of the Court’s reasoning:

“The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.”

The key thing to understand, based on this ruling is:  The question is NOT what the officer THOUGHT or BELIEVED when he pulled the trigger.  The issue is what a reasonably prudent adult policeman would have thought and how a reasonably prudent policeman would have behaved.  In the Tennessee case, the officer thought, based on the Tennessee law, that he was entitled to kill the boy.  The Court ruled that he was mistaken and that he had violated the Constitutional rights of  the boy.

How These Ideas Should Shape the Analysis of the Two Killings of Unarmed Boys

The Twelve-Year-Old With a Toy Gun

It seems to me that a “reasonably prudent man” would have chosen more than a 2-second reflection before deciding that the scene in the Cleveland park  required that he kill someone.  If he wanted to be “prudent” perhaps he should have stopped the patrol car           far enough away to observe, safely and carefully,  what was happening there before parking close enough to be in danger.  He was warned that a person in the park had a weapon.  He heard no shots being fired and had no reason to believe anyone was in danger.  Why didn’t he take some precaution against placing himself in a position where he might have to kill somebody?  Finally, if he was close enough to see, as he claimed, during those crucial two seconds, that the boy was “reaching for his waistband” in a threatening way, how did it not escape his notice that the “gunman” was twelve years old?  I don’t suggest that cops need to be adept at guessing the age of children but, unless this kid was a very unusual boy with some sort of glandular disorder, he surely had not reached the size and appearance of an adult.

Surely the officer knew that it was not unusual for young boys to play with toy guns.  The problem is that the Cleveland officer took no time to discover anything about the boy or the relevant circumstances.  He just pulled his car up, aimed and fired, with no more care or deliberation than he would have used to deal with a rabid dog.  There was no indication that he regarded the event with the seriousness that taking the life of a child deserved.

I know the standard response to these complaints:  “You weren’t there.  You can’t know what was in the officer’s mind.  He says he was scared and who are we to say otherwise?”

I think that idea is unacceptable for several reasons.  First, it makes every police officer immune from prosecution for murder.  All they have to say is, “I thought I was in danger of being killed.”  “Bingo!  You can go!”  “If you say so, that’s good enough for me!”

Our law does not afford police officers that kind of blanket immunity.  The test is NOT what Officer trigger-happy or Officer panic-button thought.  It’s what a “reasonably prudent adult who chose to become a police officer and subject himself to dangerous situations and was properly trained to react to them with mature judgment and appropriate concern for the Bill of Rights would have thought under all the circumstances.”  THAT’S THE TEST.

Second, it adds a death penalty offense to our criminal justice system.  Scaring a police officer warrants a death penalty without any appeal and without the involvement of any judge or jury.  That may not bother middle-aged white folks who lead uneventful lives.  It is, however, an issue that threatens the stability and security of a large swath of citizens in our country.

The Death Penalty Headlight Violation

Finally we come to Deputy Johnathan Frost’s escalation of a traffic stop for a headlight  ordinance violation to a violent confrontation with a teenage boy.  After dragging the boy out of his car, wrestling him to the ground and kicking his cell phone out of his hand, Deputy Frost engaged in a fistfight which left him with some cuts and bruises.  Despite those wounds, the Deputy won the fight by using a taser and a pistol to kill the boy with seven shots fired at close range.

The cuts and bruises proved to be a lucky break for the Deputy because they apparently convinced law enforcement agents of Eaton County Michigan that they fully justified his killing of the unarmed boy.  No charges were filed; no grand jury action was considered and the Deputy wasn’t even temporarily suspended from performing his role as as a respected Michigan peace officer.  Everybody expressed regret about the “tragedy” but nobody thought Deputy Frost bore any blame for it.  In Eaton County, it’s not safe to say “No” to a Deputy Sheriff.

Except for its final 10 or 15 seconds, this episode is fully recorded on camera.  The Deputy demands a drivers’ license from the boy.  The boy refuses.  The demand and the refusal are repeated seven times.  Finally the boy admits that he does not have his drivers’ license with him.  The Deputy then orders him out of the car to be arrested.  The boy resists and continues to argue with the Deputy.  The Deputy gets him out of the car and lying prone on the ground.  Then the picture blurs, but we can see the boy’s cell phone skidding away from him on the pavement.  We can hear him moaning and he rises from the ground.  Then we hear a series of shots fired.  The boy is dead.

In my opinion the Deputy caused and provoked this outcome with some very bad judgment calls.  When the boy confessed that he did not have his license with him, the Deputy could have stopped to think:  “I now have a right to  handcuff this kid, take him to jail and, maybe get charged with resisting an officer, a felony.  But, should I do it?  After all, his offense is flashing his headlights at me, not exactly a serious matter.  Why should I try to do something that might wreck his young life because he is arguing with me?  I’m an adult.  He obviously doesn’t have the maturity or judgment to understand the possible serious consequences of how he’s acting.  Should I take advantage of his bad judgment or should I use my own good judgment?  He is not a threat to me or to anyone.  It was understandable for him to flash his headlights.  I’ve already ticketed two other motorists for the same thing.  The new headlights on this patrol car are unusually bright, even on low-beam.”

“After thinking it over, I’ll use the license plates on his car to identify his parents.  I’ll call them, maybe go by and talk to his dad.  Tell them to protect their son by giving him some stern advice about arguing with cops who carry firearms.  That’s what I would hope a cop would do with a child of mine.  So what if I forego a chance to make an arrest.  That’s not what I’m hired to do.  I’m hired to enforce the law with judgment and common sense, not to gratuitously injure kids who make mistakes.”

If Deputy Frost had reacted this way, the boy would be alive, Frost would not have gotten bruised and some grateful parents would have appreciated a law enforcement officer going out of his way to help them raise a son.

I think  the above alternative behavior is what a reasonably  prudent adult peace officer would have done.  Even if this expects too much from Deputy Frost, the question still remains:  Why was it necessary for him to kill an unarmed teenage boy?  Did he really believe that the kid was going to beat him to death?  Was he completely helpless to defend himself?

He claims he was afraid that the boy would get his pistol and kill him with it.  How likely is that?  Merely because it is theoretically possible does not mean that he was reasonable to expect it to happen.  After all, Deputy Frost was not disabled.  If he thought he could not handle the boy, he could have retreated instead of drawing his pistol and firing seven bullets into the boy.  Is there some unwritten but cast iron rule that cops must never retreat?  If so, maybe it should be revised.  The notion that a peace officer must, at all times and regardless of the measures required, be in control of everyone in his purview, is a stupid and dangerous rule.  It is unfair to law enforcement officers and dangerous to innocent citizens.  It does not appear in the Constitution.  Only in the movies are cops expected to be invulnerable and invincible.

Deputy Frost made the exact mistake that the officer in Tennessee v. Garner made:  Acting as if he had unlimited authority to arrest Devin Guilford, even it required him to kill him.  The Supreme Court ruled otherwise almost fifty years ago.  Instead of pulling his pistol and pumping seven bullets into the boy, Deputy Frost should have backed off and let him go.  The death penalty was not appropriate for a headlight violation.

Conclusion

I am not naive.  After over 50 years of trial practice as a lawyer in Texas I have no illusions about the contempt with which my above-stated ideas would be met by law enforcement agencies and their supporters.  I am convinced, nevertheless, that, unless police are trained and taught to be helpers peacemakers, and facilitators instead of armed and dangerous bullies, we will continue to have the needless killings and hostility toward police that are now like a plague in our country.

Here is the tough part:  The initiative must come from the police.  It will not come from their victims, mostly black and brown.  The key is establishing trust.  Trust is necessary before fear can be replaced with cooperation.  When armed police now confront black and brown citizens, they do so with acute awareness of the hatred and distrust that results from 300 years of abuse, discrimination and brutality.  That history is stitched into the fabric of our culture and it can be erased only by demonstrable changes in the behavior and ethos of our law enforcement community.

It expects too much to require the peacemaking and trust from the victims.  The trust and acceptance must be earned by the creation of a new history of fairness and willingness to abandon the “cops are always right” mentality.  Changes will not come without costs.  Some innocent officers will pay a price for hesitating before resorting to lethal force.  I mourn in advance those costs just as I am repelled by the senseless killings chronicled here.  But the reward for building trust and confidence in our law enforcement agents will be a reduction in crime and a more  peaceable community, priceless goals.

Finally, and here again, I know how politically un-correct this is:  The only way to initiate the kind of cultural change I am writing about is to have a few, well publicized convictions of peace officers who behave like the Cleveland officer who gunned down a twelve-year-old and Officer Frost who escalated a confrontation that ended with the bullet-riddled body of a teenager.  That, more than anything else, will motivate law enforcement agencies to change their attitudes and practices.  Nothing changes when there are no consequences for leaving things as they are.

I dream of a nobel effort.  It will require brave leadership and wisdom.  It is possible if well intentioned  intelligent and courageous men and women are determined and steadfast.

§ One Response to American Law Enforcement Officers’ License to Kill: We Need To Revise It

  • tubularsock says:

    Bob, if the world was as reasonable as you are we would not be having this conversation in this country ……… many police are left over military trained individuals who should NEVER be allowed to carry a weapon!

    Great post.

    Like

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