Wednesday, December 16, 2015

Gaming the Law of Self Defense

Apropos of nothing, I see that my recent traffic from Russia is double that from the U.S.  I'm not sure that's a good thing.

Anyway, there was a police shooting in Chicago:

The deceased, 17-year-old Laquan McDonald, is described as high on PCP, non-compliant, and armed with a knife with which he had attempted to slash the tires of police cars that had responded to reports of Laquan attempting to break into nearby trucks.

The case raises an important question: how should the police be required to engage an armed, non-compliant subject when probable cause exists but when the subject is not directly threatening them? My preference would be: wait for the taser. But then I would equivocate: it may depend on other circumstances. Does waiting put someone else in danger? But "it may depend" may be bad instructions to police in need of clear guidance.

But . . . this?

Let me begin my criticism by acknowledging that Andrew Branca has taught me most of what I pretend to know about self defense law, to wit: deadly force is authorized against a person who has put you in reasonable fear of imminent death or serious injury. Plus you must be innocent in the confrontation, plus (in the handful of duty-to-retreat states, you must not have a safe avenue of escape.

I expect every police officer in the country has been taught a defensive doctrine called the Tueller Drill. The Tueller Drill was developed by Salt Lake City Police Officer Dennis Tueller, who among other things was a firearms instructor for his department.

Dennis trained uniformed police officers who were armed with pistols and who regularly encountered violent suspects armed with impact weapons, particularly knives.

. . . .

Dennis knew a pretty good time for an officer to clear his weapon from his holster and strike a target with two center-mass rounds was about 1.5 seconds. Once that time is known, the question of interest becomes how great a distance an attacker armed with an impact weapon can cross in that same 1.5 seconds. Whatever that distance, the aggressor became an imminent threat for self-defense purposes once he crossed that threshold.

After running a great many empirical tests, Dennis found that the distance that an impact-weapon armed attacker could cross from a standing start in 1.5 seconds was not just 5 feet, or 10 feet, or 15 feet. Rather, such an aggressor could consistently cross a distance of 21 feet, a full 7 yards, in the 1.5 seconds it would take the typical officer to draw his holster and engage that aggressor with aimed fire.

That suggested that an aggressor armed with an impact weapon becomes an imminent deadly threat even when he was as far away as 21 feet–a distance that astonished even many experienced law enforcement officers.

I have multiple problems with where this is headed.

First, those 1.5 seconds = 21 feet numbers assume a holstered weapon, yet we see from the video that the police have their weapons already drawn and beaded on the subject. That reduces an officer's minimum response time from 1.5 second to a few tenths of a second at most, and damned near instantaneous in this case, as we shall see.

Second, I don't like rules, or rather an application of the rules, that can be gamed this easily. The officer is approaching the subject, gun drawn, he himself crossing the 21-foot threshold as the subject angles away from him. What, exactly, are the officer's intentions? I'm prepared to take seriously arguments that deadly force is authorized under the conditions I stated above, but if that is off the table, then I want to know what the officer plans to accomplish by getting that close. The subject is obviously not dropping the knife in response to the officer's instructions. Meanwhile, the officer obviously can't engage the subject with non-deadly force with his hands full with his own pistol. I'm open to alternative interpretations here, but I can think of only two choices: the officer doesn't actually have a plan, in which case he's a badly-trained fool; or he's trying to contrive a situation where deadly force is authorized, which ought to violate the innocence condition that Mr. Branca teaches.

But sure enough, gaming the rules is exactly what Mr. Branca allows:

(1) McDonald was brandishing a knife in his right hand as he walked down the middle of the street while facing numerous police officers. It must be assumed that he was being non-compliant with lawful orders to drop the knife, get on the ground, and the usual law enforcement protocols for such circumstances. Note that the police have a legal duty to enforce public safety, and cannot simply allow a knife-wielding PCP addict to wander up and down the public streets. Only one person was making a free choice that evening, and that was McDonald. He chose, as they say, poorly.

So stipulated.

(2) McDonald does not walk directly away from the officers, but rather angles no more than necessary to keep a distance of 10-12 feet (typical width of a car lane) between the officers and himself. This is well within the 21 foot distance that these officers would have been taught as part of their Tueller Drill training. At a distance of 10-12 feet the knife armed McDonald could be on the officers stabbing them with his knife in well under a second. Officer Van Dyke would be well aware of both this fact and the grievous injuries that a knife can cause.

Could be, yes. But a "reasonable threat" requires, or ought to require, some demonstrated intent to cause harm. Trayvon Martin and Michael Brown clearly demonstrated such intent, indeed, by actually causing harm. John Crawford and Tamir Rice just as clearly demonstrated no threat at all. And Laquan McDonald?

(3) The moment before the first shot appears to be fired McDonald is walking down the dashed-white line of the road, thus parallel to the officers, and he suddenly blades his upper body towards the officers. This movement would be consistent with an intent to charge at the officers with his knife. It is quite possibly this threatening movement, knife still in McDonald’s hand, that induced Van Dyke to begin firing.

I'm not sure how seriously to take this. It could be that Mr. Branca is floating the arguments that Van Dyke's lawyer could be expected to try, given the evidence at hand. But if I were on the jury, and "blades his upper body" were all he had to demonstrate an "imminent threat"? Van Dyke would be cooked.

But the gaming doesn't stop there:

(4) Officers are taught to continue firing at a deadly threat until the threat has been neutralized. Even after McDonald fell to the ground he was still in control of his movements and he still possessed the knife, thus he was still an imminent threat of death or grave bodily harm to any officer who got close enough.

I feel just a little dirty having to spell this out, but a person who falls to the ground in a hail of bullets is definitionally not in control of his own movements. And somebody lying face down in a pool of his own blood doesn't meet my definition of an imminent threat of anything to anyone standing over him. "Close enough" in this instance would seem to require someone to be lying under the prostrate Laquan.

But Mr. Branca is a good lawyer and I will readily concede this: the argument he makes, when and only when it is applied to police officers, succeeds often enough to not discount it's possible success. I've seen too many videos of police officers pumping bullets into prone and probably dying subjects on the grounds that, "Hey, they're still moving! They're an imminent threat!" And for this reason I'm actually not that eager to convict Van Dyke of first degree murder for doing what he wsa trained to do. It's the training that needs to change, and prosecuting police officers in politically and racially motivated trials is too blunt an instrument for effecting the change I want. But at the end of the day, the law requires reasonableness, and in this case neither Officer Van Dyke nor Mr. Branca isn't showing much.

1 comment:

Anonymous said...

It's hard to tell from the video exactly what move McDonald made right before the police shot him, but it did NOT seem like he was making a move toward them.