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To Serve and Protect Everyone Massachusetts Needs a Law for the Use of Lethal Force

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Author: Mark L. Bail

A tale of two communities.

One a mid-sized Massachusetts city, the other a small suburb of 14,000.

An officer from the city is laid off and finds work in the suburb. Responding to a call in the suburb one evening, the officer finds himself in the living room of a nice home talking to an older couple about an attempted home invasion. Their dog is barking at him. The officer isn’t in danger, just annoyed. Nonetheless, he takes out his gun, points it at the dog, and tells the couple, “Shut that fucking dog up, or I’m going to shoot it!”

The officer does not last long in the suburb.

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This anecdote, I think, illustrates a problem with American law enforcement: different communities, different standards. Suburbanites tend to know their rights. They are not afraid of the police. They do not fear retaliation if they make a complaint. They know the people in the local government. They know lawyers. They know how to sue. The suburb does not tolerate police who pull their weapons and threaten house pets. They tolerate such behavior. A suburban kid gets busted with intent to distribute, his parents hire a lawyer to get him off with a suspended sentence and probation. His urban counterpart, with an overworked, underpaid, public defender, ends up in the system. Our communities have their standards, what we will tolerate and what we won’t.

What people of color once knew from experience, we all know from Youtube. Lethal force are too frequently applied in a racist and capricious manner. One source of the problem is that statutes set a very low bar for law enforcement. Communities may set certain norms for law enforcement, but laws are supposed to provide a backstop for social norms. In the United States, the law tragically provides almost no backstop.

If a police officer has “probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or other” in Tennessee v. Garner471 U.S. 1 (1985), s/he can shoot to kill. That belief only needs to be reasonable as it will be “[t]he “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” Graham v. Connor 490 U.S. 386 (1989). Thus case law goes a long way in protecting police officers from prosecution. These cases set a low bar for police use of lethal force, and provide the standard for objective reasonableness as a test. It’s important that they only consider the officer’s point of view. In Utah, an unarmed 20-year old was shot and killed by police when he went to adjust his pants. Police were looking for three people that flashed a gun. The 20 year-old was with two friends. He was wearing headphones and not complying with police orders. The shooting was justified. As Amnesty International reports, “No state limits the use of lethal force to only those situations where there is an imminent threat to life or serious injury to the officer or to others.”

I’m no lawyer, but as I understand it, the lack of a statute results in a reliance on case law, which compared to international law and standards, are decidedly weak. I’m not overly concerned with complying with international law, but it’s worth comparing any American system to an ideal. That’s often how change starts. This should be our guiding principle:

“Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life” (emphasis added).

There is much more that needs to be done. Police work is not necessarily discriminatory, insensitive, or abusive. Most police do see their jobs as serving and protecting. In many communities, and many instances, their jobs have more to do with social work than criminal investigation. Since the advent of the Quinn Bill, police have become a much more professional group of people, educated and well-trained. It’s time for our laws address all of their roles in the community in all of our communities.

………………………….

Final anecdote: A police officer makes a traffic stop. The driver threatens him with a knife. and a car chase through two towns ensues. The suspect is eventually cornered in a strip bar where he brandishes a barbecue fork with 5 inch tines. An autopsy later determines that he is drunk and has used cocaine. The police officer, a 16-year veteran of the force, ends up shooting and killing him.

“An individual, including a police officer, may use deadly force if he has a reasonable belief that he is in imminent danger of death or serious bodily injury,” [District Attorney William] Bennett said.

“Applying this legal standard to the credible facts, there is insufficient evidence to prove that the sergeant did not actually and reasonably believe that he was about to be attacked. … Consequently, no criminal charges will be sought in this matter and the criminal investigation will be deemed closed.”

I remember there being some controversy over this shooting, which took place in Monson. Would the suspect be alive today if police followed used lethal force “”only as a last resort when strictly necessary to protect themselves or others against the imminent threat of death or serious injury”? Would the officer in question have been indicted? The DA’s words echo Garner, but they hardly offer a ringing endorsement of his actions.

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