“He’s got a gun! Gun,” is what we heard a police officer shout moments before Alton Sterling was shot and killed. “I told him not to reach for it,” is what we heard a police officer shout moments after Philando Castile was shot and killed.
Those taped statements are critical pieces of evidence in two cases now at the center of national civil unrest. To understand why, understand this: civil rights are at the epicenter of police-involved shootings. Black, white, or purple, we are equal under the law. We are all guaranteed a Fourth Amendment constitutional right to be free from unreasonable search and seizure. The greatest seizure is taking someone’s life. This is done with “deadly force.” Deadly force may only be used by an officer of the law, when it is justified. Our highest court says there is only one circumstance in which it is justified: defense of life. A police officer may take a life to defend a life.
If a killing is not in defense of life, then the deadly force is “excessive and unreasonable” and the taking of the life is a civil rights violation and a federal crime. For this reason, every police initiated killing that does not involve a victim in the course of committing a felony or fleeing in a dangerous manner (i.e. dangerous car chase), merits a Department Of Justice investigation. Under state law, an unjustified killing is manslaughter or flat out murder, depending on the circumstances.
So then, why do we have so many cases where it appears the deadly force was excessive and unreasonable yet the officer is not convicted of a crime either at the state or federal level? It can be explained by those words on the videos, “He’s got a gun. Gun,” and “I told him not to reach for it.”
Amadou Diallo, Michael Brown, Tamir Rice, Eric Garner and now Alton Sterling and Philando Castile. Just a few of the men killed for among other things: reaching for wallets, holding toy guns, struggling to fight unlawful arrests.
The most important thing to understand is that, under the law, it does not matter whether there was an actual threat. This in and of itself may seem completely absurd. You may be thinking, so if a police officer thinks a man is reaching for a gun but he is actually reaching for a wallet, he can kill that man and face no consequences? In many cases, the answer is yes, that’s legal. You may be thinking, so if a police officer mistakes an innocent man for a criminal and kills him he may not face any consequences. Again, in some cases, yes, that’s what our law stands for.
Mindboggling? Here’s why. Hindsight is 20/20. Our courts have decided that an officer can only assess a situation as it is unfolding. Often times, those situations are chaotic. For example, when an officer is pursuing an armed and dangerous suspect, late at night, who just committed a felony. Police officers are taught they have about a half a second to react to a deadly threat. If a police officer waits for someone to draw a gun, the officer will die. Therefore, officers are trained to shoot to kill when they believe someone is reaching for a gun or other dangerous weapon with the intent to kill them or someone else.
For this reason, the actual threat does not matter. What matters is whether the officer perceives a deadly threat. So, does this mean any officer can kill any person based on his or her skewed perception? No. Our courts balance the risk faced by officers with the sanctity of human life. The officer’s belief, whether correct or mistaken, must be reasonable. So, courts ask: would an objective, reasonable police officer (not just anyone) have perceived the same threat and acted the same way in those circumstances? The circumstances are the key to a conviction. It’s not just the circumstances at the moment of the shooting, it’s the totality of the circumstances.
“He’s got a gun. Gun,” said the officer just before killing Alton Sterling.
“I told him not to reach for it,” said another officer right after killing Philando Castile.
Those statements are so important because they evidence the officer’s perception of a threat. Both officers say they issued commands not to move. You cannot shoot and kill someone for failing to follow command. But the statements show that the officers likely believed both men were reaching for guns. Remember, to defend a life, they are taught: shoot to kill when a person reaches, not when they retrieve.
However, was it reasonable to hold the belief that Alton Sterling and Philando Castile were not only reaching for guns, but reaching for guns with the intent to shoot the officers? Would an objective officer have perceived that same threat in those circumstances? This test weeds out racist officers, emotionally unstable officers and ill-trained officers because it measures them up against the archetypal officer, the righteous man every officer should aspire to be.
The circumstances provide the answer and the videos provide proof of at least some of those circumstances. Take Philando Castile. He is pulled over for a broken taillight. He has a child in the backseat. So far as we know from his fiancee’s undisputed account on the video, he calmly complies with commands to put his hands up. He also allegedly complies when asked to retrieve his license and registration. He even complies with the law, by notifying the officer that he has a licensed firearm in the vehicle. So the question is: would a reasonable, objective officer in that situation have believed that Philando Castile was reaching for his firearm with the intent to kill? If not, then it is not a justified killing in defense of a life. Instead, it is an unreasonable seizure of life and a federal crime.
At the state level is it murder? Is it manslaughter? For manslaughter, you need adequate provocation. Castile must have done something adequate to provoke the officer to lose his self-control. If he did not then was this murder? You may be thinking, isn’t intent required for murder? Yes, in some cases. But there is also something called second-degree depraved murder, which does not require intent. It only requires that the officer do something that’s likely to kill someone and display extreme indifference to that person’s life.
Now take a look at the Sterling case where there is a chaotic struggle right before the killing. There is another prong to the analysis that surfaces here and that is: an officer must only use force proportionate to the threat. He may not escalate a situation with force and he is required to deescalate whenever necessary. Deadly force must only be used as a last resort, when a threat to life is imminent. If you employ the “objective, reasonable officer test,” some may argue, even though Sterling never grabbed his gun, how do we know he wasn’t reaching for it? We cannot see his right hand in the video. His hand is obscured by a car. In the midst of a struggle, some may argue, any reasonable officer would have thought he was reaching for the gun.
Again, the totality of the circumstances is critical. You may often hear protestors shout, “hands up, don’t shoot.” This is not just a rally cry; it is a rule. A dispatcher alerted officers in the Sterling case that a man matching Sterling’s description was carrying a weapon. The call created a reasonable suspicion to conduct a legal stop and frisk. At the start of the video we see one officer pointing a gun at Sterling. We see Sterling holding his hands up in the air. This is an opportunity to do a legal pat down and confiscate any illegal weapon. It is also an opportunity to call for backup if the officers feel the stop and frisk would be dangerous. This is a critical moment because it is a chance to deescalate. Instead, we see an officer run and tackle Sterling, who looks almost twice his size. This is a moment of escalation. It leads to a struggle. It appears Sterling is resisting what is arguably an unlawful attempt to arrest him without probable cause. This struggle leads to the killing at close range.
Under the law, an aggressor may not claim self-defense in Louisiana. Therefore, a defense of life application is technically not even an option. Additionally, when we watch the video we hear gunshots, a three-second pause followed by more shots fired. In any deadly force encounter, the force must be proportionate to the threat. An officer is trained: shoot to kill. But, if an officer shoots someone and disarms the person, he may not kill the person if they no longer pose a threat. Instead, the officer has a duty to try to save the person. Failing to act to save, amounts to criminally negligent manslaughter in many jurisdictions. During that three-second pause, could Sterling have posed a deadly threat? Did that final round of gunfire kill him? If so, it would be classified a murder, regardless of everything that happened before those final shots.
What makes these cases so different from so many in the past is video evidence. Without objective evidence, often times the only credible testimony comes from the officer. Righteous or corrupt, that officer can paint his own picture of the circumstances that led him to perceive the deadly threat. In those cases, reasonable doubt lends him the benefit of the doubt. In other cases, officers make deadly mistakes even with the best intentions. Sometimes, these killings are legally justified, although they remain morally incomprehensible, especially for the families of the victims.