The Unwritten Law That Helps Bad Cops Go Free

Juries must understand that not all fear is reasonable, and some officers wrongly panic.

Reprinted from National Review

Yesterday afternoon, Minnesota officials finally released the full video of the traffic stop that cost Philando Castile his life. It’s a tough video to watch. I’m embedding it below, but beware, it is very raw:

If you watch carefully, two salient facts should emerge. First, Philando Castile was quite literally following the police officer’s instructions when he was shot. The officer asked for his license and told him not to reach for his gun. Castile reached for his license while verbally assuring the officer that he was not reaching for his gun. The officer shot him anyway.

The second fact overwhelmed the first. The officer panicked. His terror is palpable. The man went from conducting a relatively routine traffic stop to shrieking and firing in a matter of seconds. Part of this is understandable. Life can change in a flash, and when we’re in a state of ultimate distress, few of us can be as composed as SEAL Team Six.

When I saw that palpable panic, I immediately knew why he was acquitted. The unwritten law trumped the statutes on the books. The unwritten law is simple: When an officer is afraid, he’s permitted to shoot. Juries tend to believe that proof of fear equals proof of innocence.

Consider, for example, the otherwise inexplicable hung jury in the case of Michael Slager, the officer who was not only caught on tape shooting Walter Scott, a fleeing, unarmed black man, in the back, he was caught planting evidence by his bleeding body. Yet even then, prosecutors couldn’t convict. Why?

Slager testified that there was a scuffle before the video started and that Scott had taken Slager’s taser and used it against him. Slager said, “In my mind was fear. I was scared. With everything leading up to this . . . it was total fear that Mr. Scott was coming toward me.” Scott was of course running away, he didn’t have the taser, and Slager hadn’t told his fellow officers that the taser was taken and used against him. He testified to his fear, however, and the jury didn’t convict.

But pay careful attention to the applicable jury instruction in Slager’s case.

The defendant does not have to show that he was actually in danger. It is enough if the defendant believed he was in imminent danger and a reasonably prudent person of ordinary firmness and courage would have had the same belief. The defendant has the right to act on appearances even though the defendant’s beliefs may have been mistaken. It is for you to decide whether the defendant’s fear of immediate danger of death or serious bodily injury was reasonable and would have been felt by an ordinary person in the same situation. [Emphasis added.]

Legally, it’s not enough for an officer to show that he was actually afraid for his life. He has to show that “a reasonably prudent person” would also have the same fear. Clever defense lawyers twist this standard into a line of argument that goes something like this: The officer was afraid, and he can explain to you the reasons why he was afraid. Therefore, it was reasonable that he was afraid.

But real fear isn’t always reasonable fear. Look at this extraordinary statement from Jeronimo Yanez, the officer who killed Philando Castile:

I don’t remember how many rounds I let off. Um, I remember seeing the last two rounds go off and I remember seeing one of those rounds hit him in the arm. Uh, his glasses flew off. I’m not sure if it was from gunfire or from him, uh, whipping his head back or anything like that. Uh, but, uh as that was happening, as he was pulling at, out his hand, I thought I was gonna die and I thought if he’s, if has the, the guts and the audacity to smoke marijuana in front of a five-year-old girl and risk her lungs and risk her life by giving her secondhand smoke and the front-seat passenger doing the same thing then what, what care does he give about me? And, I let off the rounds and then after the rounds were off, the little girls [sic] was screaming. I held the suspect at gunpoint. His arms came up into view. And they were up by his chest. I can’t remember what I said. But I acknowledged this little girl first. Cuz I wanted her to be safe and I told Officer Kauser or I told her one of the two to go run out of the car and run to Office Kauser or Officer Kauser to get her. And then I turned my attention to the front-seat passenger. I didn’t point my firearm at her. I still had it on the suspect. Cuz he was still moving.

Yes, Yanez actually said, “if he has the, the guts and audacity to smoke marijuana in front of the five-year-old girl and risk her lungs and her life by giving her secondhand smoke . . . what care does he give about me.” While it’s an _explanation_ for his fear, it’s not remotely reasonable.

Let’s contrast the Yanez and Slager cases with actual, reasonable fear in a similarly controversial case. Earlier this year, a Tulsa, Okla., jury acquitted officer Betty Shelby in the shooting death of Terrence Crutcher, an unarmed black man. In a _60 Minutes_ report broadcast just before the trial, Shelby told the story of the shooting, and it’s clear that Crutcher wasn’t following her commands, behaved erratically, and reached inside his car in spite of repeated commands to get on the ground. Here’s part of the report:

Shelby says Crutcher kept ignoring her commands, kept walking toward the SUV even though she had drawn her gun, and had ordered him to get on his knees.

Betty Shelby: And he’s not doing it. I’m hollering at him, “Stop. Stop now. And he has now put his hands back up in the air. And he’s looking at his vehicle, back at me.”

Bill Whitaker: And you’re thinking?

Betty Shelby: I’m thinking he’s calculating how he can get to his vehicle to get whatever weapon it is that he’s going to get because he didn’t find it in his pocket.

The other officer on the scene was also alarmed:

Bill Whitaker: Did you assess the situation as being dangerous?

Tyler Turnbough: Yes. It made the hair stand up on the back of my neck. I don’t know what this guy’s doing. Why is he — why is he walking away from her? What are his intentions? Why doesn’t he just stop?

The climactic moment was chilling. Officer Shelby describes a man who simply won’t do what she says, then makes a sudden move:

Betty Shelby: I’m feeling that his intent is to do me harm and I keep thinking, “Don’t do this. Please don’t do this. Don’t make this happen.” And then right there he’s looking back at me. That’s what we call “targeting.” So he’s getting my position, my last-known location to retrieve and then shoot . . . His shoulders drop, his arm drops, and he’s reaching in. And it’s fast. Just that would tell any officer that that man’s going for a weapon.

Crutcher didn’t have a gun, but the law does not require cops to be omniscient. It requires that they be reasonable. It is reasonable to believe that a person who won’t obey commands, won’t get on the ground, and is walking back toward (and ultimately reaching in) his car is a threat. It’s unreasonable to believe that a man who follows your commands — and assures you that he’s following your commands — is a threat in part because exposing a girl to secondhand smoke exhibits some sort of depraved indifference to human life.

We trust juries to make these distinctions, even though they’re hard — even though they can send otherwise-good men to jail for split-second mistakes. But these are split-second mistakes with fatal consequences, and juries simply can’t presume that all fear is reasonable fear.

Last year, I wrote that cops are rarely convicted in part because the legal standards rightly don’t ask police to prove that they were in _actual_ danger when they pulled the trigger. Officers aren’t omniscient, and they can only react to the facts as they perceive them. Absent corruption, incompetence, or malice, most officers are going to make reasonable choices in high-stress situations.

Some, however, will fail, and it’s imperative that juries understand that not all fear is reasonable, and some officers simply (and wrongly) panic. Perhaps some have unreasonable fear because of racial stereotypes. Perhaps some have unreasonable fears for other reasons. Perhaps some have a brutal habit of escalating force too quickly. But every officer must uphold the rule of reason, a rule that compels a degree of courage, a measure of discipline, and a tolerance for risk that is inherent in the job that they’ve chosen.

The vast majority of officers are up to that challenge. A few are not. They must be held accountable. Justice demands no less.