This blog was originally posted July 11, 2016.
WMU-Cooley Law School faculty have brought their scholarship and practice expertise to help students and the public understand the tragic events of Louisiana and Minnesota arising from police shootings of civilians they had stopped. They have recently appeared in media in Michigan and Florida on the circumstances under which deadly force may be used in self-defense or during an arrest. Here are some of their thoughts, with links to their media appearances.
Self-Defense Must Be Proportional to the Threat.
Tampa Bay Professor Karen Fultz appeared on Bay News 9 TV in Tampa to say that Florida’s statutes define deadly force, in terms of self-defense, as akin to if when someone is approaching you and you believe that you will be harmed or killed by way of their approach, you have the right to use self-defense and the same amount of force that would be used by them. What makes the particular incidents confusing is that police officers have training such that they should react differently than would ordinary citizens to the perception of deadly force threatening them. Though they knew that the victims possessed a gun, the investigators or jury will still be called to assess whether their responses were reasonable.
Prof. Fultz cautioned that shortly following incidents like these, the public often does not have sufficient information in which to draw a conclusion as to what happened. She pointed out that even the videos taken by citizens or by the police may not tell the whole story.
Citizens Must Comply With a Lawful Order When Stopped by Police, and Police May Use Force on a Compliant Suspect Only to Prevent Escape.
Grand Rapids Professor Tonya Krause Phelen commented on WOOD-TV in Grand Rapids about the rights and responsibilities people have when stopped by the police. Citizens have the responsibility to comply with a lawful order of the police. But in the Minnesota case, the early video evidence suggests the victim was complying with the police but was shot anyway. The only time police can use force under such a circumstance is to prevent escape of someone who they have probable cause to believe presents a threat to others if he escapes. Without that probable cause, his shooting could amount to a section 1983 civil rights violation. Because so many people now carry weapons lawfully, Prof. Krause Phelen also suggested that police, local citizens and gun rights advocates begin a dialogue to address how police can affect police stops in ways that present less danger to the them or others when stopping a person who lawfully has a weapon.
Professor Krause Phelen also appeared on WXMI TV in Grand Rapids to elaborate on the duty of citizens when stopped by the police. Police are trained and are supposed to be respectful at the outset, escalating their response only if the suspect resists. Police are allowed to use deadly force, she repeated, only if the suspect is escaping and presents a danger of death or serious bodily harm to the officers or citizens in the area.
Body Cameras Worn by Police Are Beneficial Because They Add to Available Information About What Happened.
Tampa Bay Professor Jeffrey Swartz appeared on WFTS-TV in Tampa to point out that body cameras increasingly worn by police benefit both the citizens and the police. Professor Swartz, who was a judge of the Miami-Dade County Court before joining our faculty, noted that videos taken by private citizens of an arrest or a police altercation often are taken after the fact or sometimes while the arrest is occurring, but they rarely depict what happened beforehand. He likewise urged that people not rush to judgment, given that videos taken by citizens do not tell the whole story.
A Citizen’s Video Recordings Is Helpful and Legal So Long as the Citizen Does Not Interfere with the Arrest.
Lansing Associate Dean Christine Church commented on WILX-TV in Lansing about the responsibilities of citizens in taking videos of police action. She noted how cellphone video has changed American justice. “Now we have videotape, rather than a he said-she said kind of testimony. As a citizen, you have the right to record the police as long as you don’t get involved and interfere.” Dean Church added that “if it’s a bystander who is simply recording what’s going on then, that’s been held to have to be constitutionally protected by the First Amendment.”
Ultimately, the Analysis in These Cases Will Hinge on Whether the Police Officer Had a Reasonable Belief That His Life Was in Danger.
Dean Church also appeared on WKZO radio in Lansing to state that, in analyzing the conduct of a police officer, or even of a private citizen, who uses deadly force, the analysis will hinge on whether that person had a reasonable belief that his or her life was in danger. What makes the Louisiana and Minnesota cases different from some previous police shooting cases is that in the most recent cases, both shooting victims had a firearm on them. Thus, the question will be whether the officer had a reasonable belief to fear that deadly force would be used against him. In ensuing investigations and lawsuits, the videos taken by citizens and possibly by police cameras will be a key piece of evidence to evaluate that question.
We Should Use Caution Before Drawing Conclusions About What Happened Until All the Evidence is In.
Grand Rapids Professor Devin Schindler appeared briefly on WWMT-TV in Grand Rapids to urge that we not rush to judgment. He noted that police are under much more of a microscope than ever before. Yet we do not at this point know what the police officers in question were seeing, and so it is difficult at this early stage to evaluate whether these were justifiable shootings or not.