Cartoon: Ghost of Rehnquist

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It seems like it happens every few weeks – a policeman shoots an unarmed civilian (more often than not a Black civilian) and then claims to have been in mortal terror.

Sometimes, of course, they really were terrified (police training can have the effect of making police feel like every encounter is likely to turn deadly at any moment). But every single time? But the truth is, the Supreme Court has set things up so that any police officer involved in a questionable shooting has an enormous incentive to claim mortal terror, no matter what the situation was.

(For a good discussion of this, read this Shaun King article.)

The reason the US has so many police shootings isn’t just, or primarily, bad cops. It’s a bad system – a system that makes police shootings, and the lack of accountability, pretty much inevitable. And any real solution will need to be systematic, too.

I don’t often do caricatures of real-life people, so it was interesting trying to convert Rehnquist (who was, for the record, very damned racist) into my adorable cartoon style. But honestly, when I look at the drawing in this cartoon, I see something that I hope won’t be a focus for my readers – I was experimenting with a new way of drawing shine in hair. I’m still using this method, but I think I’ve gotten a bit better at it since this strip.


Transcript

Panel 1
A young Black woman is in a park, wearing a striped sleeveless shirt and black pants, talking on her cell. She looks angry. Behind her, William Rehnquist appears with a big “Poof!” He’s wearing black judicial robes (which sort of trail off into nothing, rather than him having legs) and is smiling benevolently.
WOMAN: I can’t believe the jury let that cop off! What is it with these juries? Are they just racist?
REHNQUIST: Don’t blame the juries!

Panel 2
The woman turns around, jumping back in shock. Rehnquist continues speaking cheerfully.
WOMAN: Who are YOU?
REHNQUIST: I’m the ghost of William Rhenquist! I was Chief Justice of the Supreme Court until I died in 2005.

Panel 3
The woman listens, somewhat bewildered, as Rhenquist leans closer to explain.
REHNQUIST: When I was on the court, we ruled that it doesn’t matter if a suspect really was dangerous. If a cop says he believed the suspect was dangerous, any police shooting is legal.
(Footnote: See Tennessee v Garner & Graham v Connor.)

Panel 4
The woman calmly asks a question.
WOMAN: But doesn’t that give cops a huge incentive to say they thought hey were about to die no matter what the circumstances?
REHNQUIST: Clearly!

Panel 5
The woman now appears agitated, horrified. Rehnquist answers cheerfully, giving her a thumbs-up.
WOMAN: So even if a cop shoots a 9 year old kid, he just says he was terrified and he’s in the clear?
REHNQUIST: Now you’ve got it!

Panel 6
The woman yells angrily; Rehnquist, puzzled, shrugs.
WOMAN: So is the Supreme Court going to FIX that?
REHNQUIST: Er… Fix what?

This entry posted in Cartooning & comics, Contemporary Racism, cops, Institutionalized Racism, police brutality, Race, racism and related issues. Bookmark the permalink. 

23 Responses to Cartoon: Ghost of Rehnquist

  1. 1
    Gerald says:

    “Fix what?”
    THAT is exactly the answer the American citizens are given when confronting the state sanctioned killings of African-Americans!
    And if it is not state sanctioned…wtf is it?
    The number of killings of African-Americans by law enforcement is consistent year after year.
    It is a feature … not a bug!
    Any suggestions as to how we stop this practice?

  2. 2
    RonF says:

    Hm. Asking the Supreme Court to overturn it’s own precedent might take it into directions you folks might not want it to. OTOH, unless there’s a direct Constitutional question involved here, this is something that could be fixed by Congress.

    This comes up against a reality of police work; namely, that cops have died because they failed to treat a situation as dangerous when it actually was. Did someone get shot because what the cop thought was a gun was really a cell phone? Well, there’s quite likely cops who are dead because what they thought was a cell phone was really a gun. When the light is bad or the suspect is a distance away or he’s been acting non-cooperative or hostile or drunk or high, when the cop tells him to drop what he’s got in his hand or pull his hand out of his pocket empty and he doesn’t, there’s situations when there’s just not enough time for the cop to give the suspect the benefit of the doubt while the cop can still be reasonably sure of staying alive if he (or she) is wrong.

    Tell me – where would YOU draw the line?

    a policeman shoots an unarmed civilian (more often than not a Black civilian)

    Hm. An assertion of fact. Do you have stats on that?

    (police training can have the effect of making police feel like every encounter is likely to turn deadly at any moment).

    Likely? Or possibly? What do you base “likely” on?

    But every single time?

    Are you claiming that every single time a cop shoots an unarmed civilian the cop subsequently claims he was terrified?

    Do you think that every single time a cop shoots an unarmed civilian it is unjustified?

  3. 3
    Ampersand says:

    Do you think that every single time a cop shoots an unarmed civilian it is unjustified?

    Of course not.

    My question to you, Ron: Why are you starting the discussion with the difficult cases?

    I expect there are cases where police end up killing an unarmed civilian, but it’s completely reasonable – that is, where the police had good reason to think the civilian was armed and dangerous, used appropriate tactics to keep themselves and any civilians safe, and nonetheless ended up in a situation with no reasonable choice but to shoot.

    I’d call such a case “high fruit.” So why start the discussion there? Why not start with low-hanging fruit instead?

    Why not instead discuss Tamir Rice?

    There we have an unarmed child who was shot to death by police who made multiple tactical errors (according to an expert with forty years experience in law enforcement), and who felt endangered primarily because of those avoidable errors.[*] And we have a police department culture that has been criticized by the DOJ for poor training, officers being too quick to draw their guns, and unsafe tactics.

    This isn’t an unavoidable death. This is not a case where the only way Tamir Rice could have lived was for the police to take more chances of being shot themselves. In fact, if the police had used proper tactics and caution, not only would Tamir Rice be alive today, but those same tactics would make the police themselves safer.

    And Tamir Rice is hardly the only case.

    This is low-hanging fruit. Shouldn’t we go for that first?

    Oh, and yes – the prosecutor in the Tamir Rice case was obviously biased and determined to get the indicted police officer off. Which is no surprise – he works closely with the Cleveland police, virtually every working day of his career. Mutual respect and cooperation between his office and the police is essential to his job. It simply shouldn’t be accepted practice for someone in that position to also be put in charge of a police shooting grand jury. In a case like this, a different prosecutor – one from another city, with no connections at all to the Cleveland police force – should have been appointed.

    [*]And also due to bad communication from the 911 call center.

  4. 4
    Jeff says:

    Why not instead discuss Tamir Rice?

    I expect there are cases where police end up killing an unarmed civilian, but it’s completely reasonable – that is, where the police had good reason to think the civilian was armed and dangerous, used appropriate tactics to keep themselves and any civilians safe, and nonetheless ended up in a situation with no reasonable choice but to shoot.

    I’d call such a case “high fruit.”

    I think you need to think more on the reconciliation of these sentences. I won’t argue that tactical errors were not made, but let’s not pretend like the police were just driving by and noticed him. A neighbor had called the police and said that “a black man” was “Aiming a gun” at people’s homes. This is very similar to the John Crawford case, where a man was shot while carrying a BB gun that he intended to buy from the Wal Mart that he was carrying it in. Worse, Crawford was shopping in an open carry state, where he could have legally been brandishing a real shotgun in that store. The problem was that someone called 911 and said that “a black man” was “pointing a gun” at people.

    In both of these situations, huge tactical errors were made, the police fired before giving the “suspects” time to surrender, in Crawford’s case, without even announcing themselves. But in both cases the police had been led to believe by the calls made to emergency services that the “suspects” were armed and dangerous. These cases weren’t low hanging fruit, I think Rice just got a lot of outrage and time because of his age.

    Philando Castile, I think, is a MUCH better example of low hanging fruit. Pulled over by an officer, he advises the officer that he has a concealed carry license and a firearm, the officer spooks and shoots him seven times, and then arrests his girlfriend. That was bullshit.

  5. 5
    Ampersand says:

    I won’t argue that tactical errors were not made, but let’s not pretend like the police were just driving by and noticed him.

    This is bizarre, Jeff. You agree that tactical errors were made (or at least, you won’t argue that they weren’t made), but then say that I’m somehow pretending that the police were just driving by and noticed him. Of course, I neither said or implied any such thing. Are you suggesting that if the police are responding to a 911 call, and make preventable tactical errors that lead to a death, that isn’t something we can try to prevent by trying to make the police use better tactics? That wouldn’t make any sense.

    A neighbor had called the police and said that “a black man” was “Aiming a gun” at people’s homes.

    So that we have an accurate basis for discussion, here’s what the 911 caller actually said:

    “I’m sitting here in the park by West Boulevard by the West Boulevard Rapid Transit Station. There’s a guy with a pistol. It’s probably fake, but he’s like pointing it at everybody. … Guy keeps pulling it in and out of his pants. It’s probably fake, but you know what? It’s scaring the shit out of me. … He’s sitting on a swing right now, but he keeps pulling it in and out of his pants, and pointing it at people. He’s probably a juvenile; you know? … He’s right here by the, you know; youth center or whatever, and he keeps pulling it in and out of his pants. I don’t know if it’s real or not.”

    But the 911 dispatcher failed to pass along the caller’s comments that the gun was “probably fake” (which the caller said three times) and that the “guy” (not “man”) was “probably a juvenile.” Should the officers go in assuming that the gun is fake, just because the 911 caller said so? Should they have assumed that the suspect was a juvenile, and that juveniles are always harmless? Of course not. But they should have been given that information so that they could have it to help them access the situation for themselves.

    In both of these situations, huge tactical errors were made, the police fired before giving the “suspects” time to surrender, in Crawford’s case, without even announcing themselves. But in both cases the police had been led to believe by the calls made to emergency services that the “suspects” were armed and dangerous.

    In Tamir’s case, the police either didn’t announce themselves, or made the announcement in a moving car with the windows rolled up.

    But that aside, you really haven’t made an argument here. You’ve stated that the police had been told that there was a black male with a gun pointing it at people. That’s true. But that fact doesn’t, in any way I can see, lead to the conclusion that tactical errors don’t count or were unavoidable. As I’m using the term, “low hanging fruit” refers to cases where avoidable police errors (and in the Rice case, the errors were easily avoidable) led to a civilian death.

    Being told that there is a person pointing a gun at others doesn’t make using good tactics less important; it makes good tactics MORE important.

    They never should have driven into the park straight at Rice. They never should have gotten within 50 feet of Rice, let alone seven feet. They should have stopped 100 feet away, accessed the situation from a position of relative cover and safety, and called for backup if they thought there was any chance of danger at all. They should have used a loudspeaker or megaphone to announce themselves to Rice, if they thought he was too dangerous to approach. None of these things would have been putting themselves at risk; in fact, if Rice HAD been a hostile, armed man, all of these things would have been safer for the police than what they did. That they thought Rice was armed makes it more important, not less, that they not endanger themselves by barrelling up to the suspect.

    But once they did drive right up to Rice, which they shouldn’t have, they shouldn’t have made the situation worse by an officer getting out of the car immediately. (He actually was getting out before the car was completely stopped.) They should have stopped and accessed. If (as they later claimed) the car slid, causing them to stop closer to Rice than they intended, then they should have put the car in reverse and slowly backed up to a safe distance, and then stopped and accessed.

    As the expert I linked pointed out, they didn’t even give themselves enough time to be certain that they had found the actual suspect. They were told that the suspect was sitting on the swings, but Rice wasn’t on the swings when they drove up. There was no gun visible (Rice had it tucked in his pants band, under his shirt). If they believed there were other civilians in the park, then they had even less reason to be sure Rice was the suspect. They literally drove up to the only person they saw and, in under two seconds, shot him. How should they not have known better than that?

    This was low hanging fruit. The Cleveland police department culture has a problem with needless use of force, and with guns being drawn when they shouldn’t be, according to the DOJ. This is an instance of that. If the cops had been trained to follow correct procedure, and were in a police culture in which that training was taken seriously, Tamir Rice would be alive today.

    (Plus, as expert reports pointed out, a police officer who had been fired from another force, had a history of lying, and had an emotional breakdown on a shooting range, should never have been hired by Cleveland in the first place.)

    There were lots of preventable errors that led to Tamir Rice’s death. That’s low hanging fruit.

    That said, I agree, Philando Castile is ALSO low hanging fruit.

  6. 6
    nobody.really says:

    1. Regarding the cartoon: Love the body language. And I love the moral: We shouldn’t blame juries for exonerating cops when, in effect, the Supreme Court has told them to.

    2. That said, I’m not persuaded that Rehnquist and the two cited cases—Tennessee v. Garner and Graham v. Conner—are the villains here. Where the ghost of Rehnquist says “If a cop says he believed the suspect was dangerous, any police shooting is legal,” I don’t think that that’s a fair characterization of the holdings of those two cases.

    Tennessee v. Garner, 471 U.S. 1 (1985), issued while Justice Burger was the Chief Justice, held a cop liable for shooting a fleeing suspect when “the officer [lacked] probable cause to believe that the suspect pose[d] a significant threat of death or serious physical injury to the officer or others.”

    And in Graham v. Connor, 490 U.S. 386 (1989), the Rehnquist Court declared that the Fourth Amendment requires a cop’s actions in using force to be objectively reasonable in light of the facts and circumstances confronting her—the cop’s intent or motivation notwithstanding. The reasonableness of a particular use of force must be judged from the perspective of a reasonable cop on the scene, understanding that cops must make split-second decisions.

    So, no, a cop’s subjective, unreasonable fear of a suspect would not justify the use of force—which is what I think the ghost of Rehnquist is implying. Admittedly, these two cases established the premise that courts must evaluate claims against cops from the cop’s (reasonable) perspective. But honestly, what other standard could we expect cops to meet—omniscience?

    At this point, Amp might be feeling a bit uneasy about his cartoon. But wait—what do I hear? Could it be subsequent court decisions riding to the rescue?

    The Court later held that an officer gets the benefit of qualified immunity if the officer “cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in his shoes would have understood that he was violating it.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014). The “statutory or constitutional question [must] be beyond debate … with a robust consensus of cases of persuasive authority.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083-84 (2011). This standard is designed “to protect officers from the sometimes ‘hazy border between excessive and acceptable force.’” Saucier v. Katz, 533 U.S. 194, 206 (2001). And this standard applies even when an officer’s conduct is “constitutionally deficient.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004).

    To defeat the application of qualified immunity, the plaintiff must show that “it was clearly established that the Fourth Amendment prohibited the officer’s conduct in the ‘situation [she] confronted.’” Mullenix v. Luna, 136 S. Ct. 305, 309 (2015) (internal citations omitted). Given that no two circumstances are exactly alike, it’s unclear how anyone could meet such a standard.

    So cheer up, Amp: Your deeply cynical interpretation of the law is vindicated!

  7. 7
    nobody.really says:

    Amp is focusing on the “low-hanging fruit” of especially egregious cases. I won’t attempt to defend them. But I struggle to know how to maintain perspective on these matters.

    1. As Amp acknowledged to RonF, we should expect that innocent people will sometimes get shot and killed by cops, even when the cops act flawlessly, because reality is messy. But how often should we expect such an event?

    I mean, every time an airplane crashes or a bridge collapse, there is a hunt to find the party at fault—as there should be. Be we also know that in a world of chance, we should expect rare events to occur—rarely, but still to occur. Some swans will be black swans. The fact that a human being is the mechanism by which bad things occasionally happen really doesn’t change this dynamic.

    So, how often should we expect fatal police shootings, and fatal police shootings of black men? How would we develop an estimate?

    2. Here’s one way to estimate the number of police homicides we should expect: Compare the ratio of fatal police shooting to the number of fatal non-police (and non-suicide) shootings, and conclude that this ratio should be fairly constant. That is, the number of private homicides might indicate both the amount of violent crime that the police must intervene in, and the rational level of fear that a police officer should have. So as a neighborhood gets more violent, we should expect that the police also get more violent. As the neighborhood becomes for peaceful, we’d expect the same of the cops.

    Hey, it’s a start.

    3. Once we establish a baseline number of lethal police shootings, what proportion of the victims should we expect to be black men?

    Well, as a first order approximation, we might expect the proportion of the victims who are men to equal the proportion of men in society. But it seems intuitive that men are more likely to be involved in violent crime—and thus police would rationally have a heightened sense of fear around men—than of the population in general. So maybe we should expect the proportion of male victims to be equal to the proportion of male prisoners? Or the proportion of males convicted of violent crimes?

    Now, what proportion of the victims would we expect to be black? This is tougher. Police tend to patrol certain neighborhoods more than others—and allegedly they often focus on poorer neighborhoods, which often tend to be blacker neighborhoods. So in the process of developing an estimate of the number of black victims we should expect in the absence of inappropriate bias, we’d need to consider whether the current deployment of police officers is what we would expect in the absence of inappropriate bias. Alternatively, we could develop two estimates—one estimate assuming that current deployment practices are rational (and thus, it would be rational to expect that a disproportionate share of shooting victims would be black) and one estimate assuming that these deployment practices are irrational (and thus, we should expect the number of black victims to reflect the share of black people in the population at large).

  8. 8
    Seriously? says:

    3. Once we establish a baseline number of lethal police shootings, what proportion of the victims should we expect to be black men?

    Well, some horrible people would say that black men should be no more over-represented among people killed by police officers than they are over-represented among those who kill police officers.

    Why are such horrible people so horrible? Because if we go by such horrible standards, there would be nothing to fix -for any one year period in the last five years, black men are far more over-represented among those who kill policemen than among those who are killed by policemen.

    Do you know who is more over-represented among those who kill police officers?

    White supremacists and men convicted of felony domestic violence.

    Do you know who is over-represented among the police officers who are killed?

    Black men. Black women are also up there.

    Make of those statistics what you will, but remember, if you think that it is OK that policemen kill a lot of black men, you should be OK with them shooting white supremacists on sight.

    ===========

    By the way, as far as I am concerned, policemen kill black men in a disproportionate number because they are disproportionately afraid of black men. So the best way to reduce the number of policemen killing black men, or any other kind of people, is to make policemen less scared. And the two best ways to achieve that is to:
    1) give them less justification to be scared.
    2) not overemphasize how dangerous their job is.

    Also, I have killed in the line of duty (in one country) and I have been arrested for disarming a police officer (in another country).

  9. 9
    David Schraub says:

    I hate to say this, but neither Garner nor Graham remotely stand for the proposition that “If a cop says he believed the suspect was dangerous, any police shooting is legal.”

    Here’s the opening paragraph of Garner:

    This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.

    And here’s the opening of Graham:

    This case requires us to decide what constitutional standard governs a free citizen’s claim that law enforcement officials used excessive force in the course of making an arrest, investigatory stop, or other “seizure” of his person. We hold that such claims are properly analyzed under the Fourth Amendment’s “objective reasonableness” standard, rather than under a substantive due process standard.

    Indeed, Graham in particular tells us that the officer’s subjective belief about the defendant’s dangerousness is utterly irrelevant:

    As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. [cites omitted]. An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.

    So it seems like both Garner (which — over a dissent by CJ Rehnquist — declined to approve of the shooting of an unarmed, fleeing burglary subject despite the officer’s testimony that he “had no idea what was in the [suspect’s] hand [that he could not see] or what he might have had on his person.”) and Graham (which unanimously held that an officer’s use of force must be objectively reasonable, regardless of what the officer subjectively believed the situation required) are exactly what you want the law to be.

  10. 10
    desipis says:

    Ampersand, I’m a little unclear as to where your focus is. The first panel of your comic references criminal prosecution of individual officers. Yet your comments seem to be more focused on the police departments as a whole:

    Are you suggesting that if the police are responding to a 911 call, and make preventable tactical errors that lead to a death, that isn’t something we can try to prevent by trying to make the police use better tactics?

    As an individual officer, Loehmann was responsible for only one of the many errors that occurred that night. He was an inexperienced officer, told that there was a man with a gun threatening people in a park, warned he was heading into a dangerous situation and instructed to have his gun in his hand, who found himself in the dark 10 feet from someone with a gun like object. The question is whether it’s beyond reasonable doubt that a reasonable person could, finding themselves in that situation, believe that their life was in imminent danger and react. I don’t think I could say for sure I wouldn’t pull the trigger in those circumstances, so I don’t think I would feel comfortable convicting or indicting.

    Of course taking a broader look at the larger collection of errors there’s a different story. You’re correct that Loehmann shouldn’t have been hired in the first place, that the full details of the call should have been relayed, that Loehmann shouldn’t have already had his gun in his hand and that Garmback should have stopped the car in a safe location.

    However, on the responsibility of the department as a whole in Tamir Rice’s case, it would appear there’s no legal impediment as there was a multi-million dollar settlement for the wrongful death-suit. The same is true for Micheal Brown. And Eric Garner. Are there cases where the police department has not been legally found responsible where you think they ought to be?

    To use your low/high fruit analogy, getting the criminal convictions of police officers is the high fruit. The intense focus on getting “justice” by sending police officers to prison undermines the ability to build consensus on taking more practical measures (the low fruit), such as independent investigations of police shootings, higher recruitment standards, and better training. This is particularly so given the immediacy of such calls for “justice” often come well before all the facts are known and are clearly better described as calls for “vengeance”.

  11. 11
    Ampersand says:

    As an individual officer, Loehmann was responsible for only one of the many errors that occurred that night. He was an inexperienced officer, told that there was a man with a gun threatening people in a park, warned he was heading into a dangerous situation and instructed to have his gun in his hand, who found himself in the dark 10 feet from someone with a gun like object.

    The “gun like object” wasn’t in Tamir’s hands and was not visible to Loehmann, so how can it justify Loehmann’s actions? Loehmann didn’t see any “gun like object” until after Tamir was shot.

    And we can all see from the video that it was not especially dark – even the incredibly grainy video is enough to see that Tamir was not holding the gun. (I have no doubt that if the video wasn’t good enough to see that, then at the grand jury it would have been claimed that Tamir was holding the gun, rather than the claim that he was reaching for his waistband.)

    These are lies made up by the right to justify Tamir’s death.

    The idea that Loehmann made only one mistake is bullshit.

    1. Should not have gotten out of the car.
    2. Should have asked Garmback to move to a safer location.
    3. Should have identified himself as a police officer.
    4. Should not have drawn his weapon when there was no threat.
    5. Should not have fired his weapon when there was no threat.
    6. Should not have fired his weapon in less than two seconds after arrival.

    The question is whether it’s beyond reasonable doubt that a reasonable person could, finding themselves in that situation, believe that their life was in imminent danger and react.

    That’s not the only question (although the answer is “no.” Lacking any visible weapon, any report of shots fired, and in light that was good enough to see, a reasonable person would not believe that their life was in imminent danger.)

    Another question is, did Loehmann unreasonably create a situation in which he felt endangered and had to shoot? Is jumping out of the car, gun drawn, before the car has come to a complete halt, before IDing yourself as a police officer and giving the suspect a chance to absorb that, and before you’ve had a chance to assess the situation, something a “reasonable person” would do? Again, the answer is no.

    Tamir Rice is dead because Garmback and Loehmann made a series of decisions that, in their view, justified a split-second decision to shoot dead a 12 year old boy with empty hands. But they did not just find themselves needing to make a split-second decision; their unreasonable decisions created the need for a split-second decision. Those decisions – like the decision to drive up to Tamir, and the decision to get out of a moving car – were not “decide now or get killed” decisions. So yes, in my view, Garmback and Loehmann should have been held criminally responsible.

    More importantly than my opinion of their guilt or innocence is this: The system was corrupt. The purpose of a grand jury is for a prosecutor to present their best case, so that the grand jury can refuse to indict if the case against the defendant is too weak to justify a trial. For the prosecutor to instead use the grand jury as a chance to present a defense of the accused person is a form of corruption; it is the system acting to protect Loehmann from facing a fair trial, and excluding Tamir from a chance to have his death examined in a fair trial.

    This is particularly so given the immediacy of such calls for “justice” often come well before all the facts are known and are clearly better described as calls for “vengeance”.

    This seems to me to be “weakmanning.” Yes, if you look at the arguments and advocacy made in the first couple of days after a murder, you’ll find a lot of weak arguments based on changing and confused information. And humans, not being Vulcan, will react passionately to tragedy, and we shouldn’t look down on that. But it’s been way over a few days now, and you could find many stronger arguments than those to concentrate on. It’s more appropriate to concentrate on those than to complain that people (gasp!) felt emotions in the immediate aftermath of a 12 year old being gunned down.

  12. 12
    Ampersand says:

    David: Thanks for your comment. But it won’t surprise you to learn that I disagree.

    You’ve said nothing I wasn’t already aware of. My comic may have fallen victim to grossly oversimplifying things (an occupational hazard of trying to fit things in six panels), but did you read the linked article by Shaun King? King writes:

    Seeing that ruling [Garner], many activists and legal scholars believed it would mark a significant shift in the prosecution of police officers who were shooting and killing suspects at will. It didn’t. In fact, one key sentence that came later in the ruling, did quite the opposite. That sentence says, “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”

    The operable word in that sentence is “believe.” Tennessee v. Garner introduced the idea that officers did not need to actually be physically threatened in order to use lethal force — they just needed to have “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others” in order to use that force.

    What looked like a victory for those fighting against police brutality was actually a neutron bomb that would destroy thousands of cases of legitimate instances of police violence. By introducing belief, which apparently does not have to be rooted in fact, into what police are allowed to claim, it is now nearly impossible to prove what officers do or do not believe. The burden of proof to refute the claims of what an officer says he or she believes is so outrageously high, that pretty much the only thing that could contradict it would be a recording or testimony of some type in which it is proven that the officer did not believe they were in danger and is only faking the belief for the sake of the legal case against them. Consequently, once an officer claims that they believed they were in danger, or that the community was in danger, that case, and any case like it, is dead in the water.

    King also wrote:

    The Supreme Court, in Graham v. Connor, determined that “reasonable use of force” by an officer must be viewed from the perspective of what appeared reasonable in the moment of its application — not from 20/20 hindsight. In other words, even though those Charlotte cops were absolutely wrong to do what they did based on the actual facts of the case, because all of those facts were not available to them when they assaulted Graham and deprived him of medical attention, or even a bottle of juice, they can’t be held liable for their actions. Officers, therefor, are fully empowered to act in the moment, even if just a little bit of restraint would’ve proven those actions to be completely egregious.

    Here’s what Graham says one paragraph before the part of Graham you quoted:

    The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. … The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.

    I think these portions of Graham have been very influential on how Americans in general, as well as the courts, think about police shootings. See the arguments made by some in this thread to justify Tamir Rice’s shooting, for example.

    Those portions of Graham have also directly influenced how police officers are taught to think of the legality of police shootings. You write that Graham:

    unanimously held that an officer’s use of force must be objectively reasonable, regardless of what the officer subjectively believed the situation required…

    Perhaps that ought to be the message police get from Graham, but it isn’t the message police are getting from Graham.

    See, for example, this article in Police: The Law Enforcement Magazine, a magazine for police officers. The article, entitled “Understanding Graham vs Connor,” quotes the two passages I just quoted in full, identifying them as “the most important quotes” (emphasis added) for understanding Graham. The sentence you focused on is not identified as important, and isn’t fully quoted in the article (only the two words “objectively reasonable” are).

    That article’s take is not unique. In this article, Nancy Marcus quotes from two different police manuals which treat Graham the same way that Police magazine did, while completely ignoring Garner. (Marcus, I should point out, does not share Shaun King’s take on Garner, but also doesn’t share your optimistic view of Graham’s impact.)

    You may not agree with this arguments, but your comment here failed to acknowledge or understand the arguments. (Which, admittedly, is probably more my fault than yours; perhaps it was a mistake to attempt to address such a complex subject in a six-panel strip.)

  13. 13
    Grace Annam says:

    I don’t have time to comment on this thread in any detail, right now; it would require a degree of care and nuance which I don’t have time to attain at the moment. However, I can contribute a small detail:

    Ampersand:

    And we can all see from the video that it was not especially dark

    This is not necessarily true. Cameras and human eyes react very differently. I have seen footage of incidents I was on, where I appeared in the footage, where visibility seemed reasonably high, when on scene at the time I experienced the environment as dark. Cameras can me made more sensitive than the human eye, and they almost always react more quickly to a change in illumination. The human eye adapts completely to darkness on a scale of minutes. Cameras do it on a scale of seconds, or tens or hundreds of milliseconds.

    This has been a factor in nighttime accidents I have investigated. An officer walking around the scene late at night can often see details which a driver whose eyes had been momentarily exposed to oncoming headlights could not see.

    Interpreting video evidence can be tricky. The line of sight of the camera is rarely the exact line of sight of any humans involved (with the exception of glasses-mounted cameras) and even then, cameras can’t tell where the human eye was looking because we look by rolling our eyeballs much faster than we can move our heads.

    There are many other considerations when watching video, which I don’t have time for right now. Video evidence can be very useful and very telling. But because it is so compelling, it’s easy to go wrong in understanding it.

    Grace

  14. 14
    nobody.really says:

    Huh. Hadn’t thought of that.

    Thanks, Grace.

  15. 15
    Ampersand says:

    (BTW, I’m thinking of rewriting this comic strip to focus solely on Graham and the way the Court has interpreted “reasonableness,” rather than focusing on both Garner and Graham.)

  16. 16
    David Schraub says:

    I think if you rewrote to look at “the way the Court has interpreted ‘reasonableness'”, that’d make all the difference. Your current transcript doesn’t even contain the word. And think of the massive change in connotation if

    “If a cop says he believed the suspect was dangerous, any police shooting is legal”

    is changed to

    “If a cop reasonably believed the suspect was dangerous, any police shooting is legal.”

    The former is just incontestably wrong as a statement of the law. The latter is right, and sounds reasonable, but perhaps is corrupted by judges, jurors, or other factfinders being far too deferential on what cops can “reasonably believe”.

  17. 17
    Ampersand says:

    Grace, that’s a fair point.

    But in the particular case we’re discussing – and I realize you aren’t talking about this case, but about general principles, so I don’t assume you’re disagreeing with me about this –

    Tamir Rice was shot at approximately 3:30 in the afternoon, about an hour and a half before sunset. Loehmann’s statement – which was full of statements intended to justify the shooting – doesn’t say a word about darkness or mention any problem with visibility (such as being blinded by oncoming headlights).

    So the sun wasn’t down, Loehmann said nothing about being unable to see due to darkness, and the video shows a fully lit scene. There’s just no reason to think it was dark when Tamir was shot.

  18. 18
    Ampersand says:

    I’m saying this a lot today… David, that’s a fair point. If I rewrite the strip, I’ll definitely keep what you said in mind.

  19. 19
    nobody.really says:

    From the Shaun King article:

    [Tennessee v. Garner declared that], “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”

    The operable word in that sentence is “believe.” Tennessee v. Garner introduced the idea that officers did not need to actually be physically threatened in order to use lethal force — they just needed to have “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others” in order to use that force.

    What looked like a victory for those fighting against police brutality was actually a neutron bomb that would destroy thousands of cases of legitimate instances of police violence. By introducing belief, which apparently does not have to be rooted in fact, into what police are allowed to claim, it is now nearly impossible to prove what officers do or do not believe. The burden of proof to refute the claims of what an officer says he or she believes is so outrageously high, that pretty much the only thing that could contradict it would be a recording or testimony of some type in which it is proven that the officer did not believe they were in danger and is only faking the belief for the sake of the legal case against them. Consequently, once an officer claims that they believed they were in danger, or that the community was in danger, that case, and any case like it, is dead in the water.

    (Emphasis added.)

    Perhaps King has accurately described the state of the law; I’m no expert. But if so, it seems absurd to blame it on the Supreme Court.

    King quotes the Court as saying that use of deadly force may be justified where the cop “has probable cause to believe that the suspect poses a threat of serious physical harm….” King then claims that later courts have construed this to require refuting a cop’s statement of belief, “By introducing belief, “which apparently does not have to be rooted in fact….” If the Supreme Court expressly requires probable cause, I don’t see how that translates to not being rooted in fact. If lower courts have misinterpreted Tennessee v. Garner, I don’t see how that’s the Supreme Court’s fault.

    From Graham v. Connor:

    The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. … The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.

    Yup—and…? As I previously asked, <a href="http://amptoons.com/blog/?p=23538#comment-381531"what standard should we ask of police officers—omniscience? If anyone would care to offer a better standard, I’m all ears.

    1. King objects that “Tennessee v. Garner introduced the idea that officers did not need to actually be physically threatened in order to use lethal force.” So maybe we should adopt a rule that cops should only use lethal force when being physically threatened. If someone is stabbing his wife and kids, but the cop is out of reach, then the cop has no reason to pull his gun.

    2. Alternatively, we could say that a cop shouldn’t use lethal force unless there is an imminent threat of serious physical harm. So when a wanted assassin takes flight, but is not posing a threat of serious physical harm to anyone at that moment, the cops should not use lethal force to detain him.

    I don’t think King is really asking for such standards. I suspect King is not really alleging that a cop could escape conviction by saying “I shot that infant in the crib because the infant made me scared for my life.” Rather, King is objecting that cops get off by saying that they acted reasonably based on the facts that the cops perceived to be true, even when there is little basis supporting the cop’s perceptions. That is, the cops DO make factual allegations, and then act reasonably on the basis of those allegations. The cop doesn’t cop to making an error of judgment, only an error of fact. And errors of fact are not unreasonable. And it’s very difficult for a plaintiff to demonstrate that a cop did NOT harbor a mistaken understand of fact.

    So if the cop says, “I through the infant in the cradle was pointing a gun at me, so I shot him,” the cop would have stated a reasonable response to a perceive set of facts about the state of his belief—but it seems likely that a jury would disbelieve the facts.

    But if the cop says, “The suspect saw me, and I thought I saw him reaching for a gun,” the cop again would have stated a reasonable response to a perceive set of facts about the state of his belief—and in this case, it may be much harder for the prosecutor/plaintiff to bear the burden of showing that the cop did NOT hold those beliefs, even if they later prove to be inaccurate beliefs.

    And I’m not sure what do about that.

  20. 20
    desipis says:

    Ampesrand,

    I got it wrong on the darkness, I must have mixed up that fact from another incident.

    Loehmann didn’t see any “gun like object” until after Tamir was shot.

    I disagree. The video is consistent with Loehmann’s claims of seeing Rice reach for the gun from his waist.

    1. Should not have gotten out of the car.

    Being in a car is an incredibly vulnerable position. Getting out of the car was the right call at the point in time it was made.

    2. Should have asked Garmback to move to a safer location.

    Garmback was a much more experienced officer. While there were obvious problems with his decisions, I don’t think it’s reasonable to hold Loehmann criminally liable for not challenging them.

    3. Should have identified himself as a police officer.

    He claims he did.

    4. Should not have drawn his weapon when there was no threat.

    He was instructed to by a superior officer. See point 2.

    5. Should not have fired his weapon when there was no threat.

    His perception that there was a threat was incorrect given 20/20 hindsight, however given his perception (on reasonable grounds) of a deadly threat firing his weapon wasn’t entirely unreasonable.

    6. Should not have fired his weapon in less than two seconds after arrival.

    There are no arbitrary time limits in life or death combat situations. Two seconds is more than enough time to identify a threat and make a decision.

  21. 21
    Radfem says:

    One problem with comparing the two cases is one uses the objective reasonableness standard, the other “probable cause” which aren’t the same thing. I think a lot of problems with Graham have been pointed out. What is the “objective” standard to what a reasonable in the moment response would be? It seems if the intent was to narrow it down, the end result was broadening it to include rationalizing uses of force including excessive force that should be considered unlawful.

    Also LE agencies when drafting use of force policies for administative/training purposes, they rely heavily on Graham’s standard of reasonableness which may add to the problem.

    Garner is usually included in policies dealing with shooting, the so called “fleeing felon” standard.

  22. 22
    Radfem says:

    Then the cavaet of assuming that the officers are telling the truth. In the past outside any evidence, the statements the officers made to investigators were seen as truthful. The statements of civilian eyewitnesses not so much. And if you read transcripts of interviews with civilian witnesses vs officer (shooters, witnesses), it’s interesting how different the lines of questioning are. Civilian witnesses get more direct questioning and some skepticism (and civilians are interviewed before any of the officers are). However, when officers are questioned, the investigators start out that way and then rely more heavily on leading questions helping them fill the blanks.

    For example, when an investigator says something like, you discharged your firearm because you feared for your safety right?

    Well that’s the investigator leading the officer on the Graham issue, almost coaching them rather than asking direct questions leading up to the objective reasonableness issue. Because it comes down to this:

    “I discharged my weapon at the subject because I feared for my life.”

    You will see those words or a variation on almost every shooting justified or not.

    In my city, the police commission and activists were trying to push the department to stop interrogating officers using leading questions. Why? Gee, maybe it’s because their own P&P manuel states in large bold print, not to ask “leading questions”?

    Things have changed a bit with smart phones and the police’s counter to that which is body cams. Everyone has to have a camera to define the narrative.

  23. 23
    nobody.really says:

    1. To what extent have Tennessee v. Garner and Graham v. Connor resulted in cops getting exonerated for using excessive force?

    Hypothesis A: Before those decisions, cops were more likely to get convicted for excessive use of force. After those decisions, convictions became harder to obtain.

    Hypothesis B: Police have ALWAYS tended to get exonerated. The only change is that, since the Supreme Court rendered those two decisions, lower courts have now started citing those decisions while exonerating cops.

    I have to suspect Hypothesis B is more plausible. No, I haven’t seen any data. But I find the Supreme Court decisions so anodyne, I find it hard to believe that they’d be the cause of ANYTHING. In particular, Graham v. Connor held as follows:

    The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. … The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.

    As I previously asked, what standard should we ask of police officers—omniscience? We’re 22 comments into this topic, and so far no one has presented a different standard. If anyone would care to offer one, I’m all ears.

    2. From the Shaun King article:

    [Tennessee v. Garner declared that], “Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.”

    The operable word in that sentence is “believe.” Tennessee v. Garner introduced the idea that officers did not need to actually be physically threatened in order to use lethal force — they just needed to have “probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or others” in order to use that force.

    What looked like a victory for those fighting against police brutality was actually a neutron bomb that would destroy thousands of cases of legitimate instances of police violence. By introducing belief, which apparently does not have to be rooted in fact, into what police are allowed to claim, it is now nearly impossible to prove what officers do or do not believe. The burden of proof to refute the claims of what an officer says he or she believes is so outrageously high, that pretty much the only thing that could contradict it would be a recording or testimony of some type in which it is proven that the officer did not believe they were in danger and is only faking the belief for the sake of the legal case against them. Consequently, once an officer claims that they believed they were in danger, or that the community was in danger, that case, and any case like it, is dead in the water.

    King also quotes Tennessee v. Garner as saying that use of deadly force may be justified where the cop “has probable cause to believe that the suspect poses a threat of serious physical harm….” King then claims that later courts have construed this to require refuting a cop’s statement of belief, “By introducing belief, “which apparently does not have to be rooted in fact….

    Perhaps King has accurately described the state of the law; I’m no expert. But if so, it seems absurd to blame the Supreme Court for how lower courts have misapplied its perfectly reasonable rulings.

    King objects that “Tennessee v. Garner introduced the idea that officers did not need to actually be physically threatened in order to use lethal force.” So maybe we should adopt a rule that cops should only use lethal force when being physically threatened. If someone is stabbing his wife and kids, but the cop is out of reach, then the cop has no reason to pull his gun. Is this a better standard?

    Alternatively, we could say that a cop shouldn’t use lethal force unless there is an imminent threat of serious physical harm. So when a wanted assassin takes flight, but is not posing a threat of serious physical harm to anyone at that moment, the cops should not use lethal force to detain him. Is this a better standard?

    3. Contrary to King, if the Supreme Court expressly requires probable cause, I don’t see how that translates to not being rooted in fact.

    That said, what is a “fact” for purposes of this analysis? Under the Court’s rulings, a cop must act reasonably based on his beliefs. His beliefs are a fact.

    And, yes, it can be hard for a prosecutor/plaintiff to persuade a jury that a cop is lying about his beliefs, or that he failed to act reasonably given his beliefs. Hard—but not impossible. For example:

    A. Cop: “I feared for my life, so I shot the suspect.” Cross-examination: “And you understood that the ‘suspect’ was an infant sleeping in a crib, yes?” Cop: “Yup.” Cross-X: “And the fact that your father had left all of his inheritance to this kid, and not to you, didn’t influence your actions?” Cop: “Nope.”

    In short, the mere statement “I feared for my life” is not relevant, as far as I can tell. Rather, the test is whether a reasonable person in the cop’s circumstances would have regarded the use of deadly force as justified. In this case, I suspect that jurors would dis-believe the cop’s statement about the nature of his beliefs. That is, they’d make a ruling based on facts.

    B. Cop: “I thought I saw the suspect drew a gun and I thought I heard him say, “Draw! I’m gonna gun you down like a dog, unless you gun me down first!’ Any reasonable person in my circumstance would have perceived this as a situation calling for the use of deadly force, so I shot him at high noon.” Cross-X: “High noon on Saturday, in the middle of Times Square?” Cop: “Yup.” Cross-X: “Can you explain why no one saw this event? And why the victim’s body had already arrived at the coroner’s office six hours earlier?” Cop: “Nope.”

    Here a cop may claim to act on the basis of his beliefs—but when those beliefs are presented along with a bunch of other statements that are implausible, a jury may well concluded that the statement of belief is false, too.

    Thus, I suspect what vexes King—and what vexes many of us—is not the legal standard. The facts—including a cop’s statement about his beliefs—do matter. What vexes us is the number of circumstances in which a cop can make a plausible statement about the nature of his beliefs, and the difficultly of rebutting such statements under most circumstances.

    Like the scientific method, courts aren’t designed to find truth, but to reject error. Judges and juries are not asked to rule on what they believe to be true, but on what the prosecutors/plaintiffs have proved. We might fault judges and jurors for being too credulous in specific cases but, having reviewed the two Supreme Court cases in question, I don’t find fault in the legal standard.

    Rather, I suspect most of the time the problem lies with these facts: The world is messy, cops have a hard job to do, and most jurors fear rogue criminals more than they fear rogue cops.

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