If you ask the wrong question, you’ll get the wrong answer.
And if the answer to your question sucks, you get a new
question. That’s a lawyer trick.
This week I saw a video of a police shooting in
Louisville (link below). It appears that the officer
pulls up alongside a man – who seems a little stumbly – and questions him. The encounter is brief and the officer does
not touch the man. The man walks off
screen, then comes back toward the officer.
As reported by WHAS11, Kenneth Williams, who said he saw the
shooting, thought the use of deadly force was unjustified. "He was drunk.
[The officer] could have maced him. He could have used his stun gun. He didn't
have to shoot that man. He wasn't no threat."
I disagree with Mr. Williams – after watching the video it’s
impossible to say that the man was “no threat.”
Rather, the video shows the man come back at the officer with a metal
pole. The man swings the pole and
strikes the officer. There is no doubt
that the officer was not the first physical aggressor. There is no doubt that the man struck the
officer with the metal pole. And it
would be very difficult to argue with a straight face that someone swinging a
metal pole is not a threat.
This blog post is about picking the right question to
ask. So now let’s choose our
question. I’ll pose 3. Question 1) Could the officer have used a less
lethal means of force? Question 2) Is it
possible the man had a gun or other deadly weapon? Question 3) Did the officer have evidence
that the man was armed and dangerous – and did the officer reasonably think
deadly force was appropriate?
Now let’s answer the questions given the video we have
(which I am sure will NOT be all the evidence that comes out with regard to
this case).
1) Could the officer have used a less lethal means of
force? Sure. The officer could have reached for his taser
or mace (Assuming he is given mace. Some
departments are in transition on that at this time.) and deployed that at the
man. Luckily for the officer, this
question is not the legal standard.
2) Is it possible the
man had a gun/deadly weapon? Yes. And in this case, a metal pole could be
considered a deadly weapon. How many
strikes would it take to kill the officer?
If he was struck in the head with enough force, maybe one strike,
right? So it’s possible that if the man
got in another hit, the next blow could kill the officer. But let’s assume the man doesn’t have a
pole. Let’s assume he came at the
officer without anything in his hands.
The answer to our question, “is it possible the man had a gun/deadly
weapon?” is still “Yes.” Because anyone
who is wearing clothes could be concealing a deadly weapon. But that doesn’t mean police have carte
blanche to kill anyone wearing clothes.
Luckily for society, this question is not the legal standard.
3) Did the officer have evidence that the man was armed and
dangerous – and did the officer reasonably think that deadly force was
appropriate? This question, number 3, is
the closest of the 3 to the real legal standard for when deadly force can be
used by an officer. The answer to our 2-part
question is Yes, the officer did have evidence that the man was armed and
dangerous. And in fact, the man was
willing to use said weapon against the police officer. Concerning the second part of the question, “did
the officer reasonably think that deadly force was appropriate?” we would have
to ask the officer. But I bet he would
respond affirmatively. Is that
reasonable? Probably. Unfortunately, sometimes less lethal means of
force don’t subdue a person who is attacking a police officer. I’ve seen times when someone got maced and
continued to act belligerently. The same
with tasing.
In this situation deadly force didn’t have to be used. But if I am trying to be objective, I think
it was acceptable under the law.
The legal standard for use of force is a “plus one”
analysis. If an officer believes you are
uncooperative and the officer legally has the right to tell you to do something
(for example, “put your hands on the car, you are under arrest”) the officer
should first use verbal commands. “Sir,
you need to put your hands on the car now.”
If the person is uncooperative verbally or physically, the
officer can use “plus one” force. Let’s
say the officer says “put your hands on the car.” and you just stare at him,
respectfully uncooperative. At this
point the officer can grab your shoulder and steer you to the car. If you jerk away – the officer can use “plus
one.” At that point the officer could
put you in an arm bar, for example, and take physical control of you to
effectuate the arrest. If you resist,
they can take you down. If you strike,
they can hit you or use a taser. Get
it? They can use one more level of force
than you have presented, in order to make a lawful arrest.
The best indicator for the acceptable use of deadly force is
this question, “Did the officer have evidence that the man was armed and
dangerous – and did the officer reasonably think that deadly force was
appropriate?”
I’m a criminal defense and civil rights lawyer. I sue police for using force inappropriately. I can tell you that police misconduct and brutality
do happen and they happen in our own backyards.
Police need to be held to the highest level of professional conduct –
because when they make mistakes, people can die. But in this case, I cannot say that this
officer should be held to any criminal or civil penalties for the use of a
firearm on a man who attacked him with a deadly weapon.
And to my clients, I would say that attacking a police
officer with a metal pole is a good way to get shot.
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