Page Pate: There is an immediate need for clear, national standards on the use of deadly force
Trump's "stop and frisk" proposal would just increase the use of excessive force through confrontational police-citizen encounters, Pate says
Editor’s Note: Page Pate is a criminal defense and constitutional lawyer based in Atlanta. He is an adjunct professor of law at the University of Georgia, a founding member of the Georgia Innocence Project, a former board member of the Federal Defender Program in Atlanta, and former chairman of the criminal law section of the Atlanta Bar Association.
Follow him on Twitter @pagepate The opinions expressed in this commentary are his.
The two major party presidential candidates have very different views on how to address the use of deadly force by police officers in situations like the recent shootings in Tulsa and Charlotte. Hillary Clinton wants national standards for how and when police officers should use deadly force. Donald Trump wants more “stop and frisk.” One proposal will likely reduce the improper use of deadly force, the other will almost certainly increase it.
In my experience, police officers are not out to intentionally kill people of color. An officer’s decision to use deadly force is based on a number of factors. For most officers, the decision to use deadly force depends on the officer’s training, experience and ability to cope in highly volatile and stressful situations.
While there are certainly racist police officers (like there are some racist people), I have never been involved in a case where I thought the officer decided to use deadly or excessive force based solely on a person’s race.
But that doesn’t mean that race isn’t a factor. It is. It is a factor because, in my experience, police officers tend to make snap judgments based on very limited information and prejudicial stereotypes. The officer in the helicopter in Tulsa certainly made a snap judgment when he said, “That looks like a bad dude,” despite the fact that the officer knew nothing about Terence Crutcher other than his size and skin color.
Why would these officers say that Terence Crutcher was a “bad dude” and that it was “time for a Taser?” Why would an officer think this obviously unarmed man walking away with his hands in the air was a danger to anyone? He may have been reaching toward his car window, but why would that necessarily create an immediate threat to these officers or anyone else? I suppose it is odd that he wasn’t following the officer’s commands, but that by itself doesn’t mean he posed a danger to them.
An officer can’t shoot someone just because the person won’t do what the officer asks him to do, but is empowered to use excessive force based on a reasonable belief that the person poses an immediate threat of serious injury to the officer or someone else.
What was it about Terence Crutcher that made this officer afraid? I think the honest answer may be that it wasn’t really anything he did, it was how he looked. And this officer made a snap decision to shoot him, at least in part, because of his size and the color of his skin. I am certain that if I had been the man walking to my car in Tulsa, I would not have been shot dead in the street.
If we accept that race is a factor in these cases, then how can we address it so that fewer people die when they are confronted by the police? Better training of the officers is certainly a good idea, but what kind of training should it be?
I think there is an immediate need for clear, national standards on the use of deadly force. There is no uniform set of policies that educates officers on when they can use deadly force and when they cannot.
Current laws are incredibly vague about when an officer can and cannot use deadly force. Trying to determine after the fact if an officer had a reasonable belief that the person posed an immediate threat of serious injury to the officer or another person is extremely difficult. More importantly, current law gives no real guidance to officers on the street about what to do in a situation like what happened in Tulsa. While there are policies and protocols adopted by most law enforcement agencies, these polices are not uniform and do not carry the force of law.
Under current law, police officers can use deadly force against a person when they reasonably believe that person poses an immediate threat to the officer or some other person. But that doesn’t tell officers anything about when they should pull their service weapon and shoot.
Do they fire at a suspect if they think he may have a gun? Do they wait until they actually see a gun? Do they wait until the gun is actually pointed at them or someone else? Can they shoot someone who is running away? Can they shoot someone who just ignores them and starts to walk away? The answer to these questions is a very unsatisfying, “It depends.”
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If we have clear national standards, then we can give better guidance to officers on when and how an officer can use force before deadly force is used. Then we can focus our efforts and money on training and hiring highly qualified people for these very tough jobs. This should prevent some of these incidents from ever happening. And, when they do happen, it will be much easier to determine who was wrong and why.
What Donald Trump is proposing (more stop and frisk) will just increase the use of excessive force through confrontational police-citizen encounters. I can’t think of a worse way to build trust between law enforcement and the people they serve.
Mr. Trump’s “stop-and-frisk” proposal would presumably allow officers to detain, question and pat down people based on the officer’s subjective determination that they looked suspicious in some way. A similar policy in New York was found to be unconstitutional in its application, and the current mayor of that city has criticized Mr. Trump’s plan as being a step backwards.
If we implement a “stop-and-frisk” policy on a national basis, it will result in more confrontational police-citizen encounters, not less. It will cause more distrust, more fear, and more violence. We will not solve any problems; we will simply create more.