Law & the Courts

When Cops Create Their Own Risk, Innocent People Die for Their Mistakes

(Joshua Lott/Reuters)
And when the mistake is theirs, they cannot use the ‘split second’ defense.

The video is puzzling and shocking. After receiving a call to a non-emergency number requesting that police check on a neighbor’s house that had its doors open and its lights on, police approach silently. They look into an open door and into a brightly lit room, but they don’t say anything. They then creep around the house, moving from light to dark. They use a flashlight. They keep moving around the edges of the house.

Suddenly, in a mere moment, one of them spots movement in a window. The officer yells for the shadowy figure to put up her hands and then immediately fires a shot. Atatiana Jefferson was dead. She was 28 years old. According to her family’s lawyer, she was playing video games with her young nephew when they heard “rustling” outside and “saw flashlights.” There was a gun in the house, but there’s no indication (yet) that she was holding it in her hand.

But what if she was? Does a homeowner not have a right to investigate someone lurking on her property? Can she not arm herself at 2:30 a.m. when she hears a strange sound in the darkness?

I’ve been looking closely at the police-shooting issue for many years, and I’m noticing a trend in many of the worst and most controversial shootings. The police make mistakes that heighten their own sense of danger, and then they “resolve” their own error by opening fire.

The examples are easy to find. The worst and most recent is that of Dallas officer Amber Guyger, who made the dreadful mistake of entering the wrong house and then immediately dealt with the perceived “threat” by shooting the innocent man inside.

But Guyger is hardly the only offender. Who can forget the terrible shooting of Philando Castile, gunned down as he tried to comply with conflicting commands from an obviously panicked officer — the officer told Castile to hand over his license and proof of insurance, but also to not reach for his gun. He shot Castile to death even as Castile was calmly telling him that he wasn’t reaching for his gun.

Then there’s the extraordinarily gut-wrenching video of a cop killing Daniel Shaver as he sobbed and begged for his life. The officer’s instructions were utterly incomprehensible. He told Shaver to not put his hands down for any reason. He also told him to crawl down the hall..

No one should forget Andrew Scott. Police seeking a suspect showed up at the wrong house (without a warrant), did not turn on their lights, did not identify themselves as police, and pounded violently on the door late at night. When Scott answered his own door with a firearm in his hand, he was instantly shot dead.

It wasn’t until the tragic death of Willie McCoy that the trend truly became obvious. McCoy was sleeping in his car, blocking a drive-through window, with a gun in his lap. When he began to move, cops clustered around his car started screaming at him so loudly that the transcript of the video has to explain that the shouts weren’t gunshots. Then, within three seconds, the officers riddled him with bullets. They startled him awake, and then killed him.

In response, I wrote this:

When we evaluate police shootings, we wrongly tend to limit our analysis to the very instant of the shooting itself. The question of a cop’s reasonable fear at that instant is allowed to trump all other concerns, and becomes the deciding factor at trial. I would argue, however, that officers act unreasonably when they don’t give a citizen a reasonable chance to live — and giving a citizen a reasonable chance to live involves properly handling the situation so no weapon need be fired.

Would Atatiana Jefferson still be alive if the cops had parked in front of her house and clearly identified themselves by shouting into the open door? Would they still be alive had they not lurked around a person’s home without permission — exactly like a person who was trespassing, perhaps with malign intent?

There is absolutely no question that police have a difficult job. There is no question that even routine encounters and wellness checks can — on rare occasions — escalate to deadly violence. But there is also no question that time and again police have enhanced the risk to the public through their own mistakes. Poor tactics can yield terrible results, and police should not be able to use the “split-second decision” defense when they created the crisis.

There is no greater violation of liberty than the loss of your own life in your own home at the hands of misguided, panicky, or poorly trained agents of the state. Absent compelling evidence not yet revealed to the public, it appears that the man who killed Atatiana Jefferson committed a criminal act. He deserves to face criminal justice.

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