Poor Lives Matter:
The Criteria for Deadly Force and Enforcement
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1: Not Because You’re Black, Because You’re Poor, (Although Many Poor Black People are Poor Because They’re Black)
2: Criteria for Deadly Force and Enforcement Outline
3: Applying the Criteria
Trending among activists in 2016 was the wrongful use of deadly force by law enforcement officers. San Francisco was far from the exception for the civically active as Mario Woods was executed on camera, in broad day light, exhibiting non-threatening behavior.
Activists in their typical short sighted against things but for nothing posture, attributed the disproportion amount of black people killed by police officers to racism. While they make the surface comparison of the total population of black people in the United States, to the number of black people who were the victims of deadly force, they neglect all other explanations for causation.
From my perspective, and these assertions will be established with evidence within this publication, the issue has more to do with class than it does with race, notwithstanding the fact that economic inequality along racial lines is rooted in past racism. Populations with deep concentrations of black people tend to be more disadvantaged areas than those populated by white people. The expected effect of black people being denied income and educational opportunities based on race within the past 50 years or so. The greater a people is economically disadvantaged, the more desperate the population is, the greater the incidence of crime, the greater the exposure to police, and consequently, the greater the likelihood one will become the victim of deadly force by law enforcement.
The root issue is economic disadvantage, and the solution to economic disadvantage is a Center for Economic Planning. However, people are more interested in the band-aids, and as I came to discover, they really are not even interested in the band-aid.
I am usually not interested in addressing the symptom, I am interested in addressing the cause to eliminate the problem which retires the associated symptom. It seemed prudent to me to demonstrate my ability to administer cough syrup, or show I possessed the ability to address the symptom which became the focus of so much attention. The effort was undertaken to attract interest in Centers for Economic Planning.
The first issue with regulating the use of deadly force is the arbitrary nature with which deadly force can be justified. It is a situation where an officer can be justified not based on what was taking place, but what the officer thought could take place based on the circumstances. It is completely arbitrary. To remedy this issue, we establish a concrete criteria, where a suspect must be an immediate threat, and we define that threat as a situation where there is no step for an officer to intervene before a subject can create a lethal result.
Far from being a remedy only for those who seek justice for the unnecessary use of deadly force, it is a tool for police officers as well. Police are in dangerous high stress situations with no set of standards, measures, or protocol of when to use deadly force, only considering if their failure to act will result in harm to themselves or harm to the public. The criteria creates a simple well-defined process for officers to consider in life or death situations, offering them the peace of mind to know when and why to act, which affords them certainty in knowing they were justified in their actions.
The second issue is a familiarity bias with local district attorneys, where the district attorneys are biased in deciding charges against officers due to familiarity with the officers. The next issue is an occupational bias, not only for the local DA, but when an independent prosecutor is brought in to investigate the use of deadly force, regardless of a lack a familiarity, there is a natural alliance. Any prosecutor makes a living convicting suspects of crime as the officers make a living arresting people for crime. Even an independent prosecutor is prone to being biased along team lines. We rectify this issue by creating a regionally elected investigative prosecution team whose sole responsibility is to review the incidents of deadly force by law enforcement and enforce the criteria.
The following is the details of the above stated remedies, which includes 10 uses of deadly force measured by the criteria, some controversial, and others not.
Chapter 1: Not Because You’re Black, Because You’re Poor (But Some of You Are Poor Because You’re Black)
We begin by establishing basic proportional facts: 51% of police caused deaths are white people, and white people are 62% of the overall population, meaning as police killings occur, they occur among white people slightly less than proportionate to their overall numbers.
Black people make up 13% of the overall population, but represent 27%(1) of police caused deaths, meaning black people are killed by police twice as often as would be proportionate to their overall numbers. Many people understand these statistics as meaning one thing: black people are disproportionately the target of police violence because police are racist.
(1): Total Population White/Black 62% / 13% United States Census Bureau, 2015, https://www.census.gov/quickfacts/ Police Shooting Death Percentage White/Black 51%/27% The Counted, The Guardian, http://www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police-killings-us-database The Guardian statistics are middle of the road between credible statistics. Washington Post 990, Killed By Police.net 1208, and The Guardian 1146. The Guardian was chosen not because Killedbypolice.net numbers are perceived as being less accurate, as each person counted by KBP has the local media report to substantiate the claim. The Guardian was chosen because the numbers were not significantly fewer than KBP, and there was already a racial breakdown of the numbers.
A history of racism in this country has led to a disproportionate number of people of color beginning in economically desperate situations, the result of centuries, and significantly only decades ago of disadvantages and discrimination. There is a cause and effect relationship between economic inequality and higher crime rates. (2) Economic disadvantage causes higher crime rates as meaningful opportunity is scarce and people are desperate. The more desperate a people are the more crimes that occur, and the more likely there is to be a police shooting as a consequence of increased exposure. While black people are disproportionately victims of police using deadly force, it is more an effect of inherited generational disadvantages caused by past racism, and a system that is both incapable of producing enough worthwhile opportunity and is designed to ensure those with wealth will control matters of the state and the opportunities of the majority not possessed of wealth.
(2): The Relationship Between Poverty and Crime: A Cross Section Analysis of the World. Bryant Economic Research Paper Vol.4 Spring 2011, Luke Fleming: pg 12 “once again crime and income inequality are highly correlated”. (Referring to comparative data between nations using the gini coefficient and the rate in which crimes occur.) Pg 13 “this shows a positive relationship between homicide and income inequality. Pg 14 “Income inequality is positively related to all three types of crime. As money is distributed more evenly, all three types of crime should decrease”.
While state sanctioned racism no longer exists, we cannot ignore how racism from the past has led to people of certain races beginning disadvantaged.
You have a large number of black people who begin from disadvantaged positions, who form disadvantaged communities, and this is the result of past racism. It still maintains the appearance of racism because you have people of a certain racial make-up who disproportionately occupy these disadvantaged positions. The result of being the offspring of a people whose opportunities were limited due to racism for generations. Those with wealth pass down their businesses and wealth to their progeny. If one group is not afforded the opportunity to possess, then naturally the succeeding generations are at a disadvantage. Of course, this is not meant to reference only the right to own property, but the recent past, several decades removed from black people being denied employment, housing, education, and even life, impacts their ability to hand down any accrued advantage to succeeding generations. Yet if you are born poor of any race, it is difficult to accomplish much more than survive, but the generational disadvantage for black people in the United States leaves those people predisposed to beginning life financially challenged, which is inclusive of all the disadvantages of living economically stressed in terms of development.
The bigger issue is class, and race serves primarily as a distraction and a point of divisiveness, to keep underclass people separated through race. There is still racism, but it is personal racism more than it is institutional or broad cultural racism. It is no longer socially acceptable. This means racism is covert and generally cannot be applied in the denial of opportunity. I think it is evident by judging according to class. Blacks and other racial minorities who are born better benefit from the same advantages that their white counterparts do, the same way poor white people face many of the same obstacles that poor black and brown people suffer.
Another correlating factor rarely discussed is the racial disparity existing within income distribution. The household median income for white families is 57,000 dollars per year, whereas the median household income for black families is only 33,000 dollars per year. (3) While black people being disproportionately killed by police is seen by the casual observer or zealot activist as being because of race, race is not necessarily the cause, except in as much as we recognize the generational disadvantages confronting black people. Generally speaking, white people as a whole are more insulated from desperation as a racial collective than black people. Meaning white people are less likely to commit crimes. The consequence is less exposure to police and therefore they are killed less proportionately due to this lack of exposure, caused by more of this group being better positioned financially.
(3): American Median Incomes by Race Since 1967 [Chart], Business Insider, Steven Perlberg, 9/17/2013, Latest Data Available 7/2016. Source: US Census Bureau, 2013 http://www.businessinsider.com/heres-median-income-in-the-us-by-race-2013-9 The reason for the discrepancy between median household income between the study numbers that pertain to the content of this foot note and the previous paragraph, is the former are the latest numbers and in this paragraph the study uses older data, but it is the latest I was able to locate that distinguished between race and incarcerated and non-incarcerated persons.
When income distribution by race among those who are incarcerated is compared, a great deal of convergence is revealed. Below is data from a study conducted by Bernadette Rabuy and Daniel Kopf that demonstrates this denominating factor. (4)
Median Income of incarcerated people – Non incarcerated people
White: 21,975 – 47,505
Black: 17,625 – 31,245
Latino: 19,740 – 30,000
Average: 19,650 – 41,250
(4): Prisons of Poverty: Uncovering the P re-incarseration Incomes of the Imprisoned, 7/9/15, by Bernadette Raybuy and Daniel Kopf. http://www.prisonpolicy.org/reports/income.html
The median income difference between whites and blacks who are incarcerated is about 83 dollars per week. Maybe more telling is the comparison between black people who are not incarcerated, earning more than white people who are incarcerated, because it exposes a correlation that undermines the purely racial correlation, mainly, that class is more of a determining factoring for incarceration than is race alone. What is shared by all racial groups is at least half of all incarcerated people are in the bottom 20% of income earners. (5)
(5): The Distribution of Household Income and Federal Taxes, 2011, Congressional Budget Office, 24,600 lowest quin-tile, https://www.cbo.gov/publication/49440
Incarceration and income is relevant to the use of deadly force, as it suggests the class of people who are most exposed to law enforcement, and thus most likely to be the victims of deadly force by law enforcement. It is basically using a data set in lieu of the economic status of people who have been the victims of deadly force, which as far as I have seen does not exist.
1: Past racism has caused people of color to be disproportionately economically disadvantaged.
2: Since there is a lack of meaningful opportunity, this lack of opportunity causes an increase in crime in neighborhoods that are disadvantaged.
3: The greater the crime rate the more a community is exposed to the police, and also the greater the tendency for police to view the general population as criminals, due to a high crime area distinction.
4: The more exposure to police the more likely deadly force will be used.
In response Representative Cohen introduced a bill to educate officers and encourage states by withholding federal funding to use independent prosecutors to review instances of deadly force by police officers. (8) If these prosecutors are simply prosecutors who are not local to the area, they are still predisposed to being behind the blue line. While the familiarity between individuals as in the DA and PD is neutralized when an independent prosecutor is brought in, the independent prosecutor still does what for a living? Prosecutes crime, which is the result of arrests, the reports are written by law enforcement who also are witnesses. In this there is an occupational bias, but more important than this, there is still no federally enforceable criteria for when deadly force is lawful for the police to use.
(8): Cohen’s Deadly Force Police Bill Gaining Momentum, 1/10/2016, The Commercial Appeal, by Michael Collins. http://www.commercialappeal.com/news/government/state/cohens-deadly-force-police-bill-gaining-momentum-28d65c65-bede-78a8-e053-0100007f8e83-364704521.html
(7): Support for Bill to Address Police Shootings Continues to Grow, 7/8/2016, Steve Cohen Website Press Release https://cohen.house.gov/media-center/press-releases/support-bill-address-police-shootings-continues-grow
The Criteria for Deadly Force and Enforcement creates a federally enforceable criteria that succinctly defines for the officer and the public alike when deadly force is allowed:
The use of deadly force is lawful and justified against any subject who is an immediate threat to life.
An immediate threat to life exists when an individual possesses the means to cause mortal harm, and where there is no step for action to be taken prior to an action that can cause death.
No step for action to be taken prior to an action that can cause death, means plainly, that an officer cannot use deadly force until a suspect has positioned or is positioning himself to cause death. Another way of seeing it is, is the next action the suspect makes going to lead to a lethal result or is there something that must happen first where the officer is able to intervene? The criteria is thoroughly explained in the following chapter, as well as applied to different cases to demonstrate according to the known facts whether the action was lawful or not.
CDFE, also establishes a federal investigative prosecution team, regionally elected, whose only job will be to investigate and prosecute the use of deadly force by law enforcement officers. This eliminates the occupational bias associated with prosecutors and law enforcement officers.
2: The Criteria for Deadly Force and Enforcement
3: Unlawful Use of Deadly Force by a Law Enforcement Officer
4: Investigative Prosecution Team
The attention the use of deadly force by law enforcement officers receives has increased over the last few years. Whether or not the use of deadly force has increased, cannot be definitively known, since reporting justifiable homicides by law enforcement agencies has been voluntary and only recently has an independent record been kept. What is known is the ease with which events are recorded, primarily through cell phones has provided the public with firsthand accounts of the circumstances with which police use deadly force. In more than a few instances, the use of deadly force has been unjustifiable.
Need for Criteria
Through a simple criteria we establish for officers and the population alike, when an officer is lawfully and dutifully to use deadly force. Policy varies by department, statutes vary by state, and as explained by the National Institute for Justice, “no universal set of rules governs when officers should use force and how much.”. In other words, the use of deadly force is arbitrary. There is no set of rules an individual could learn and apply when in contact with law enforcement to be sure they are not shot. Just as troublesome for officers, there is no criteria to consider before using deadly force. The criteria will reduce the use of deadly force by police by changing what officers are thinking about in dangerous situations. Instead of an officer considering scenarios about what a suspect is going to do next, and possibly prematurely preempting an anticipated action based on some scenario playing out in his head, the officer will be considering what does the suspect have to do to produce a lethal result. Additionally, the officer will have the certainty of knowing when he or she does exercise deadly force that they were correct in doing so.
This is at the heart of the controversy in nearly all questionable applications of deadly force by law enforcement. One says they think a shooting was justifiable. Another says they think it was not. What is lacking is a measure, where one can say this shooting was justifiable because it is consistent with all the elements of the established criteria; or, this shooting was not justifiable because it was not consistent with a certain element of the criteria, and here is the evidence. The Criteria for Deadly Force and Enforcement seeks to establish a federal code, that clearly defines when deadly force is appropriate for the purpose of protecting members of the public, as well as members of law enforcement.
Federal Investigative Deadly Force Reviewers
We will create a new agency of investigative prosecutors to enforce the criteria. These prosecutors will operate regionally, and exist for the sole purpose of investigating and prosecuting the use of deadly force by law enforcement. This agency will create impartiality between the law and law enforcement, and in doing so, may deter law enforcement from using deadly force in situations where less than lethal force is adequate. The use of deadly force, or force resulting in death from law enforcement officers, will be reported to the regional investigative teams who are responsible for enforcing the criteria, and will have the effect of creating an accurate and official record of these occurrences.
The use of deadly force is lawful and justified against any subject who is an immediate threat to life.
An immediate threat to life exists when an individual possesses the means to cause mortal harm,(1) and where there is no step for action that can be taken prior to an action that can cause death.(2).
Identification of Weapon
(1): Does the individual who is to become the subject of deadly force possess the means to cause mortal harm? A definite identification of a weapon capable of inflicting mortal damage must be made in order to establish that the individual is possessed of the means to end life. The key words are definite identification, as the shooting of unarmed men is often attributed to benign objects, everything from sandwiches to wallets. A definite identification of a weapon can only be made of an actual weapon. The only exception, is an item that is intended to appear as a weapon, such as a toy gun, pellet gun, etc. If a suspect is in possession of an item intended to appear as a weapon, the suspect assumes the risk of a positive identification being made.
Becoming Immediate and Distinction of Weapons
(2): The second aspect of the criteria can be thought of as the relationship between the suspect and the weapon, and the weapon and the environment. Weapons can be classified as being either ballistic(A), non-ballistic(B), or mechanical(C).
A: Simply because an individual is possessed of a ballistic weapon does not automatically qualify him as an immediate threat to life when there is opportunity to intervene; as in, there are steps that must be taken in a sequence of action, prior to the suspect being in a position to cause a lethal result.
An example is if a suspect is standing with a gun, and the barrel of the gun is pointed towards the ground, or in any direction other than at a person, there are still steps required before the suspect can cause death, meaning he or she is not an immediate threat. This aspect of the criteria does not preclude lawful preemption, but preemption should not occur prior to an individual making a movement to situate his or herself as an immediate threat. What is meant by this is, if an individual is standing with the gun in hand but at the ground, preemption shouldn’t occur prior to the suspect making a move with the weapon. With the weapon pointed at the ground, he cannot harm anyone until he changes the direction the muzzle is pointed. Yet, if he or she begins to change the direction, preemption by the police is lawful, because if the suspect targets an individual with the weapon, there are no steps in between he or she firing, once a target is selected. The preceding is an extreme example of what is intended by opportunity to intervene in the sequence of action, and this is the focal point of establishing whether an individual with a ballistic weapon is an immediate threat.
B: An individual armed with a non-ballistic potentially lethal weapon, can be judged to be an immediate threat based on the same idea: what steps must be taken by the suspect to cause a lethal result? In the case of non-ballistic weapons, the urge to use deadly force should be reserved, since rarely is the suspect situated where he or she is able to make a move towards inflicting a mortal injury, without officers being in a position to prevent it. In terms of time, officers who encounter a suspect with a non-ballistic weapon, for ease of example we will use a knife, have already drawn their weapons and in a fraction of a second officers are capable of neutralizing the suspect. For this reason, range is to be considered, the distance a suspect with a non-ballistic weapon should be from any potential target to be considered an immediate threat to life, is the length of the individual’s arm, plus the weapon, and two feet. Generally speaking, an individual cannot be an immediate threat to anyone with a non-ballistic weapon, if he or she is more than 8 feet away from a target and officers have guns drawn. Again, in less than a second, the subject can be neutralized, which is faster than an individual can close a distance that exceeds the length of his ability to strike.
C: The mechanical weapons category of notes is created in consideration of vehicles or bombs. Needless to say, anyone possessing a device capable of detonating explosives is an immediate threat, as a lethal result can be achieved instantaneously.
In a situation where a vehicle is being used as a weapon, acceleration in the direction of an individual constitutes an immediate threat to life, as even if the suspect is rendered deceased by deadly force, the vehicle itself may still proceed to producing a lethal result.
Unarmed Immediate Threat to Life
An example of applying the criteria in an unconventional situation, is if a suspect attacks an officer and reaches for the officer’s weapon, although he doesn’t possess the means, and without the means cannot be defined as an immediate threat; the fact that once he possesses the means, the officer will be unable to respond, qualifies the suspect as an immediate threat to life, and an officer in such a situation would undoubtedly be justified in using deadly force. Still the same concept is at work, deadly force is justifiable, because there are no steps in between the suspect completing his present action(obtaining the officers weapon), and the subsequent action that will likely result in death(using the officers weapon against him).
Prohibition of Forced Imminence
The suspect should not be forced into becoming an immediate threat by the action of the officer. This provision is intended to prevent officers from creating a situation where the suspect becomes immediate based on the action of law enforcement. An example would be an officer drawing nearer to a suspect with a knife, making the suspect an immediate threat to life based on the criteria and then using deadly force. Tactics to deescalate the situation using non-deadly force should be exhausted, and a suspect’s right to surrender should not be impinged.
Review of Notes
The notes are offered as interpretative assistance, but establishing if a suspect is an immediate threat to life, is judged according to if there is no step for action to be taken prior to an action that can cause death. Preemption is lawful when a suspect begins to transition to a position where intervention is not possible prior to the suspect causing a lethal result. As in, preemption occurs when the suspect begins to move the gun from a safe position. The officer need not wait to see where the individual is going to point the gun, as soon as he begins to move it, preemption is justified, since no intervention is possible if the suspect targets someone.
In the simplest of terms, in consideration of the notes above, establishing an immediate threat to life consists of a conclusive identification of means, and the steps required for those means to achieve the anticipated lethal end.
3: Unlawful Use of Deadly Force by a Law Enforcement Officer
Any officer who uses deadly force, in any manner that is not consistent with the criteria contained within this act, is guilty of Unlawful Use of Deadly Force by a Law Enforcement Officer, a felony, and faces incarceration, for a period of not less than 5 year and not more than 20 years in a federal penitentiary, and up to a $250,000 fine.(1) Any officer who intentionally, or grossly violates the criteria, will be charged according to the federal or state homicide statute. (2)
(1): Unlawful use of deadly force has two distinguishing qualities, the unintentional and the intentional. Was the officer neglectful, or did the officer purposefully violate the criteria? While there are situations where an officer may over react as is consistent with the pressure of the job, if an individual dies as a result there should be significant consequences for such an action. We understand that mistakes are made, which is why unlawful use of deadly force, allows the prosecutor and judge to use maximum discretion within the guidelines.
(2): An intentional violation of the criteria, can be seen as the use of deadly force without regard to the criteria. The difference in the degree of violation hinges on an officer acting proactively, using deadly force in blatant disregard for the criteria, and an officer reacting to a perceived threat in a manner that is inconsistent with the criteria. In simple terms, the distinction can be judged by the investigator based on the circumstances of the case, whether the action was a deliberate violation of the criteria, or if the violation was due to some situational negligence. If an officer is found to have intentionally violated the criteria, the officer will be charged with the state or federal homicide statute. For example, if an officer shoots an unarmed man and the circumstances demonstrate that he intentionally ignored the criteria, the officer would be charged with the corresponding degree of homicide instead of unlawful use of deadly force by a law enforcement officer.
4: Investigative Prosecution Team
An Investigative Prosecution Team will consist of one elected federal prosecutor, and an assistant appointed by the elected prosecutor.
Reporting and Review
Any death that occurs as the result of any interaction with law enforcement personnel must be reported to the investigative prosecution team assigned to that agency. The team will create a report, itemize the facts, and conclude whether or not deadly force was consistent with the criteria. This report will be filed and a copy sent to the family of the deceased, who will be afforded an opportunity to review the facts, and contact the team if any facts are in dispute, or if any evidence has been omitted. If the use of deadly force was not justifiable, the prosecutor will file the appropriate charges.
The country is divided into 10 districts where the prosecutors will be elected to oversee. These districts were drawn in consideration of state geographical proximity, and the number of police caused fatalities that occurred in an area. (1)
(1): While official statistics are difficult to come by, as many law enforcement agencies do not report what they consider justifiable homicides to the FBI who maintain the inadequate record, these statistics come from an independent source that chronicles the events at killedbypolice.net. In each event recorded, there is the news story of the event, which is adequate in establishing that the incidents took place and the numbers are not inflated. http://killedbypolice.net/
California is the most populous state (39 Million), but it had more fatalities caused by police from October 2015 to December 2015(68), than the next five most populous states (62), the combined population of these states more than doubling the population of California (83 million). California on average will experience a fatality caused by police, 2 out of every 3 days. The California District which consists of only the state of California, will elect 3 prosecutors, who will appoint 3 investigative assistants, to accommodate the California case load.
North West District
The North West District consists of Oregon, Washington, Idaho, Wyoming, Montana, North Dakota, and South Dakota. During the period referenced, 14 people were killed by police, which is an average of nearly 1 per week. 1 prosecutor and investigative assistant should be adequate for maintaining the criteria within these states.
South West District
The South West District consists of Nevada, Utah, Arizona, Colorado, and New Mexico. Police were responsible for 25 fatalities in these states during the three month period referenced, which is an average of 1 every 3.6 days. 1 prosecutor and investigative assistant will be adequate for maintaining the criteria within these states.
Central West District
The Central West District consists of Nebraska, Kansas, and Oklahoma. During the reference period 12 people died as a result of police contact, which is an average of 1 every 7.5 days. 1 prosecutor and investigative assistant will be adequate for maintaining the criteria within these states.
Due to the amount of police caused fatalities, and the geographical breadth of Texas, Texas, is as California, a district in itself. Police were responsible for 24 fatalities in Texas during the referenced period, which is an average of 1 every 3.75 days. 1 prosecutor and investigative assistant will be adequate for maintaining the criteria in this state.
Central North District
The Central North District consists of Minnesota, Iowa, Illinois, Wisconsin, Indiana, and Michigan. 18 people died in these states as a result of police contact during the referenced period, which represents 1 person every 5 days. 1 prosecutor and investigative assistant will be adequate for maintaining the criteria within these states.
Central South District
The Central South District consists of Missouri, Louisiana, Mississippi, Arkansas, Kentucky, Tennessee, and Alabama. 34 people died during the period referenced, an average of 1 every 2.6 days. Two prosecutors and two investigative assistants will be required to maintain the criteria within this area, due in part to the geographical expanse, as well as the frequency with which deaths resulting from police contact can be expected to occur.
South Eastern District
The South Eastern District consists of Florida, Georgia, and South Carolina. 38 people died as a result of police contact during the referenced period, the equivalent of 1 person every 2.4 days. Two prosecutors and two investigative assistants will enforce the criteria in this area.
The Eastern District consists of North Carolina, Virginia, West Virginia, Maryland, Washington D.C., Delaware, and New Jersey. 25 people died as a result of police contact during the referenced period, the equivalent of 1 person every 3.6 days. One prosecutor and one investigative assistant will enforce the criteria in this area.
North Eastern District
The North Eastern District consists of Ohio, Pennsylvania, New York, Vermont, Massachusetts, Rhode Island, New Hampshire, Connecticut, and Maine. There were 31 fatalities caused by police contact during the referenced period, the equivalent of 1 person every 2.9 days. Two prosecutors and two investigative assistants will be required to maintain the criteria in this area.
3: Applying the Criteria for Deadly Force and Enforcement Act
The following is a sample of how CDFE would have been applied to real life instances of deadly force by law enforcement officers. The only obstacle is establishing facts, and with this in mind I have choosen cases where the general facts are not in dispute, as the objective of the criteria is to demonstrate how different outcomes would have occurred if it was applied, and how the criteria can be used to determine if deadly force was lawful. We will examine 10 acts of deadly force by law enforcement officers that produced deadly results.
1: Mario Woods
This incident is particularly useful in applying the criteria since there are multiple angles of video evidence, meaning the facts leading up to the execution are not in dispute.
From the video evidence Woods can be observed leaning up against the wall, and while non-compliant, is also non-threatening. By this time, it was reported that officers attempted to use other non-lethal methods in an effort to gain compliance, including pepper spray and shotgun bean bag rounds that did not produce the desired effect.
Prior to shots being fired, an officer moves closer to Woods. While Woods is both out of range and non-aggressive a heavy bean bag shot is fired. Woods crouches clearly affected by the shot. A second bean bag shot is fired that causes Woods to begin walking, clearly dazed and non-aggressively, with his arms at his side. After a few steps Woods is executed by the SFPD, multiple officers firing multiple shots. (1)
(1): Shooting video released by family attorney John Buris. https://www.youtube.com/watch?v=ADr7I8m0HNA
First two shots in video identified as “heavy bean bag rounds”,New York Daily News, Shaun King, King: Despite never lunging at police or lifting any weapons, Mario Woods is brutally shot down by San Francisco cops. http://www.nydailynews.com/news/national/king-mario-woods-life-brutally-cops-article-1.2455457
There are various details of this event where the criteria is relevant.
Was there an action that could be taken prior to Woods executing an action that can cause death? Since he was armed with only a knife and was not in range of a target, clearly there were steps to be taken before Woods could produce a lethal result; that being he had to position himself in range of a target. In other words, Woods was not an immediate threat to life and therefore deadly force according to the criteria was not lawful.
The officer’s justification was Woods began to move and they were attempting to protect bystanders. In the criteria notes under the heading Prohibition of Forced Imminence, it is explained “the suspect should not be forced into becoming an immediate threat by the action of the officer.” The officer stepped closer to Woods prior to the bean-bag-round being fired. The combination of the officer’s movement and the bean-bag-rounds that seemed to have had some effect on him, led to the movement, but the movement itself was not aggressive or threatening, and had the officer not positioned himself closer to Woods, Woods clearly was not an immediate threat to life.
According to the criteria, all of the officers would have been charged with the unlawful use of deadly force, as Mario Woods fails to meet the definition of an immediate threat.
2: Keith Childress
Las Vegas Police were assisting US Marshalls in an effort to apprehend Childress who was wanted for missing a court date in Arizona. Police were told Childress was wanted for attempted murder and was armed by US Marshals, and this information proved to be false.
The body cam and audio show the officer halfway out of his cruiser and Childress walking towards an open garage. The officer repeats commands for Childress to “drop the gun”, to “put his hands up”, and to “get on the ground”. The entire time the officer’s weapon is trained on Childress. After about 30 seconds, Childress begins to approach the officer, walking casually with one hand at his side, presumably in his pocket. What is not shown in the video is when the officer fired his weapon, which likely takes place just after the video cut. (2)
(2): Horrifying Moment Keith Childress Was Shot to Death by NYE officers. (Raw) https://www.youtube.com/watch?v=GFCMsj0srbA
The criteria states “An immediate threat to life exists when an individual has the means to cause mortal harm… A definite identification of a weapon capable of inflicting mortal damage must be made in order to establish that the individual is possessed of the means to end life.” Clearly Childress did not possess the means to end life and therefore the use of deadly force is unlawful.
In this situation, an officer is under the presumption that he is armed based not on observation but on poor information. The second part of the criteria is also relevant even as the first portion is already violated. If the officer is acting under the presumption that Childress has a gun, even though he hasn’t made an identification of the weapon, then it raises the question as to if there were steps to be taken prior to Childress becoming an immediate threat. What is the relation of the presumed weapon to the environment. While it cannot be known definitively because the shots are not shown on the video, which implies intent to conceal, what can be inferred from the video and was not reported, is that Childress did not make a sudden movement with the hand that was not seen by the police. Meaning the preemption clause within the criteria would not be applicable, even if there was leniency shown by the investigator in regard to the inaccurate information the officer was acting on.
The use of deadly force according to the criteria was unlawful based on the facts that Childress did not possess the means to cause death which disqualifies him from being an immediate threat, as well as not positioning himself to take life had he been possessed. In other words, although Childress was not an immediate threat based on lacking the means, had the cell phone in his pocket been a gun, Childress still could not be considered an immediate threat presuming the shooting took place just after the video is cut off.
3: Michael Brown
The shooting death of Michael Brown in Ferguson MO dominated national news for months, including the outrage and protests that followed. After learning the facts concerning this incident, it is amazing there was so much controversy when we consider the evidence.
Micheal Brown after being confronted by the officer for walking in the street engaged the officer while he was in his squad car. Dorian Johnson who was Brown’s friend claimed the officer grabbed and began choking Brown and Brown was simply trying to free himself from the choke, but this version of events is contrary to the evidence. There are pictures of the officer’s face that demonstrate he was struck, and the only opportunity for this to occur according to all witness testimony, is during the initial altercation.
Another piece of evidence is Browns blood being inside the squad car, but more substantial than this, is the location where Brown was wounded from the shots fired within the car; suffering a graze wound to the hand, and the other shot missing and impacting the inside of the door. If Brown was struggling to free himself, then presumably while the altercation was taking place the officer is in control, and if he is controlling Brown with one arm, while Brown is merely attempting to free himself, then there is no reason one shot misses, and the other shot hits Brown in the area of the hand that it does, which is consistent with someone who is in an attack position, not someone who is attempting to flee.
In this we establish that more likely than not, Brown was attacking the officer when the first two shots were fired from the car, and the graze wound on the inside of the thumb is consistent with the hand being positioned to reach for the gun.
The officer pursued Brown on foot, Brown stopped and so did the officer. Brown charged the officer according to “the most credible witnesses at the scene” and the succeeding confrontation led to 10 more shots fired that ended Brown’s life. “Most witnesses said the shots were fired as he (brown) moved toward the officer”. Brown’s friend Dorian Johnson claimed that Brown was shot in the back, but this testimony was again inconsistent with the facts, as all the entry wounds were found on the front of Brown’s body. (3)
(3): What H append in Ferguson, 8/10/2015, New York Times, By Larry Buchanan, Ford Fessenden, K.K. Rebecca Lai, Haeyoun Park, Alicia Parlapiano, Archie Tse, Tim Wallace, Derek Watkins and Karen Yourish. http://www.nytimes.com/interactive/2014/08/13/us/ferguson-missouri-town-under-siege-after-police-shooting.html?_r=0
For Dorian Johnson Testimony see Eye Witness to Micheal Brown’s Shooting Recounts Friends Death, 8/12/14, MSNBC, Trymaine Lee http://www.msnbc.com/msnbc/eyewitness-michael-brown-fatal-shooting-missouri
While Brown was not possessed of the means to end life, the question of the criteria is still the same, did Micheal Brown pose an immediate threat to life, where no action could be taken prior to him creating a lethal result? The answer is yes supported by the following explanation contained within the criteria: “if a suspect attacks an officer and reaches for the officers weapon, although he doesn’t possess the means, and without the means cannot be defined as an immediate threat; the fact that once he possesses the means, the officer will be unable to respond, qualifies the suspect as an immediate threat to life, and an officer in such a situation would undoubtedly be justified in using deadly force.” The use of deadly force by Officer Wilson was lawful according to the criteria.
Police pulled over Noble for driving erratically. Noble pulls into a gas station and is instructed to put his hands out the window. Noble has one hand out the window, while the other is in the truck. Eventually Noble emerges from the truck, both hands in the air, then out to his side, where he does a full 360 degree turn walking away from police and then towards police. He nears officers, then walks backwards away from officers.
Officer tell him to get on the ground. In Nobles hand is a round white object that is later identified as plastic with clay inside of it. It is revealed to officers on numerous occasions and is clearly not a gun. Noble is shot as he begins speaking to the officers, twice, causing him to fall to the ground. While on the ground Noble is writhing in pain. The officer tells him “to put his hands up”. Nobles hands are on his chest, and he appears to be trying to determine the extent of the damage caused by the gun shots, but he is definitely not a threat in the condition he is in resulting from the first two shots. While on the ground, substantially affected by the shots that put him there, officers fire a third shot. An officer forecasts the forth shot saying “if you keep reaching for what you got you will get shot again”, followed by a forth shot. (4)
(4): Fresno Police Video Shows Shooting of an Unarmed Suspect, 7/14/16, CNN, by Steve Almasy and Artemis Moshtaghian http://www.cnn.com/2016/07/14/us/fresno-dylan-noble-shooting-video/
Noble’s actions as he exited the truck, hands up, then out, the full 360 degree turn, followed by revealing the object in his hand multiple times, to a trained observer like a law enforcement officer, there is no question Noble is not possessed of the means to produce a deadly result. At no time, does he appear to pose a threat to anyone, and he is shot while trying to create a dialogue with police. Then he is shot two additional times while on the ground. What steps would have to be taken before Noble would be considered an immediate threat? He would have to produce a weapon that any reasonable person in that situation who observed what was observed on the video would have concluded he did not possess; then he would have to consider a target and position himself to produce a deadly result against that target. All of which leave steps available for police to intervene in prevention. This is unlawful use of deadly force by law enforcement as Noble did not possess the means, nor did he become an immediate threat to life at any point during the confrontation.
In the criteria, there is a distinction made between intentional and unintentional use of deadly force by law enforcement officers, whereas the unintentional carries the penalty of unlawful use of deadly force by law enforcement, and in the other, prosecutors would determine an intentional violation and charge the officer(s) with some degree of homicide. If the criteria were in effect, and these officers understood the criteria, this would likely be considered an intentional violation of the criteria. At least if I were the prosecutor I would pursue it as such. A wounded man, on the ground, with no visible weapon, who is shot two additional times, is a blatant disregard for the fact that he is not a threat to anyone around him.
5: Cameron Long
Leon County Sheriffs Deputy’s pursued Long in a car chase after he refused to pull over. Deputies attempted to shoot out his tires. Long shifted his truck into reverse and rammed into the deputy’s patrol car with the deputy inside. (5)
(5): Officials Say Leon County Officers Shot Burglary Suspect After Being Rammed With Car. 10/20/2015, TheEagle.com Eagle Staff Reporter. http://www.theeagle.com/news/local/officials-say-leon-county-officers-shot-burglary-suspect-after-being/article_538c863e-8751-51da-9c53-b42fb18a5f18.html
A truck used as a weapon is considered possessing the means to cause mortal harm and is mentioned in the criteria under the heading Mechanical Weapons. The criteria explains “In a situation where a vehicle is being used as a weapon, acceleration in the direction of an individual constitutes an immediate threat to life, as even if the suspect is rendered deceased by deadly force, the vehicle itself may still proceed to producing a lethal result.” Given the facts as reported, not only did Long accelerate in the direction of an individual, he successfully struck the deputy’s squad car with the deputy as the target of the harm. In this, Long should be considered an immediate threat to life, and deadly force is lawful and appropriate as is consistent with the criteria.
6: Jessica Williams
Jessica Williams was approached in possession of a stolen vehicle by officers involved with the stolen vehicle recovery task force. She sped off but crashed the car only about 100 feet later, where it became interlocked with a utility truck. Williams was attempting to dislodge the vehicle and an officer fired a single shot that killed her. The most crucial details disclosed by police is “there was no immediate indication that the woman was armed or had been driving the car toward officers when she was shot.” (6) There was also no weapon recovered in the car, nor was there any reason to believe she possessed a weapon at the time.
(6): No Sign of Weapon on Woman Shot to Death by SF Police Sergeant, 5/20/2016, SF Gate, by Kevin Shultz, Vivian Ho, and Kimberly Veklerov. http://www.sfgate.com/crime/article/Officer-involved-shooting-reported-in-SF-s-7720605.php
In order for a car to be considered a weapon according to the criteria, acceleration in the direction of a potential target must be occurring. In this incident, there was none, and it is difficult to determine the reason why a gun was even aimed at Williams, much less discharged. She is not possessed of the means to cause death; therefore, she is not an immediate threat, the use of deadly force is unlawful and would be considered intentional.
7: Brian Gavin
Aiken County Sheriff’s Deputy’s returned to Brian Gavin’s residence shortly after leaving the location believing that a domestic dispute was resolved. The Deputy’s heard gun shots inside the home and entered to find Gavin with a gun pointed at his wife. After refusing commands to drop the gun, officers fired fatally wounding Gavin. (7)
(7): Identity of Man Shot, Killed by Aikens Co. Deputies Released, by Emery Glover 11/21/2015, CBS Live 5 News, http://www.live5news.com/story/30496764/sled-investigating-deputy-involved-shooting-in-aiken
I chose this example because of how well it fits the description of an immediate threat to life. The gun is pointed at the individual having just been discharged. There is nothing the officer can do in between Gavin deciding to kill his wife and doing it. He is an immediate threat to life, as “an individual (who) has the means to cause mortal harm, and… there is no step for action that can be taken prior to an action that can cause death.” The criteria states “The use of deadly force is lawful and justified against any subject who is an immediate threat to life.”
8: Gilbert Flores
Police responded to a domestic disturbance call at Flores residence. Police describe Flores as resisting arrest, although none of this resistance is apparent from the video. The video shows Flores running outside from the home. He is out of view for a moment and then reappears. There is an officer within a few feet of him with his gun drawn. Flores places both hands in the air, and then he is shot once by each officer. Flores dies as a result of these wounds. (8)
(8): Exclusive Video: Fatal Deputy Involved Shooting. ABC KSAT 12 News, 9/1/2015, Robert Taylor, Bill Barajas http://www.ksat.com/news/exclusive-video-fatal-deputy-involved-shooting#
Flores is without the means and aim to be considered an immediate threat. His hands are raised and he is incapable of being a threat of any kind from the position he is in at the time he is shot, according to what can be seen from the video, despite being armed with a knife. With both arms in the air, out of striking distance from any other person, Flores is not an immediate threat to life, and his shooting death according to the criteria would qualify as unlawful use of deadly force by a law enforcement officer.
9: Arther West Jr
Officers responded to a call from a woman who was being held in a home, with her children, against her will by Arther West Jr, who was armed. When the officers arrived on the scene the woman and her children had escaped the home, but West Jr, was still inside with the gun. The report indicates that West Jr was firing shots inside the home, and destroyed the phone which ended communication with the negotiators. Eventually, West Jr smashed out a window and pointed his gun at the officers outside, to which they reacted by shooting and killing West Jr. (9)
(9): Hostage Suspect Threatening Standoff Killed By Deputy, 10/25/2015, Times Recorder, Bradley W. Parks, http://www.zanesvilletimesrecorder.com/story/news/crime/2015/10/25/sheriff-one-dead-officer-involved-shooting/74581242/
An easy assessment, as clearly West Jr. was ITL, but this example is chosen more to highlight how well the officers handled the situation. By this I mean, although West Jr. was possessed of a weapon capable of deadly force, they recognized, that he was not an immediate threat until he positioned himself to produce a lethal result. This is a thorough representation of how the criteria should be applied, exhausting every possible course of action to enforce the law while protecting the public, before using deadly force; and resorting to deadly force only when the suspect is an immediate threat to life or positioning himself to become immediate.
10: Alton Sterling
Alton Sterling was confronted by officers outside of a convenience store where he was familiar with the owner and sold CDs in an effort to earn money to support his family. The video shows Alton standing in front of a car and the store owner said Alton asked officers what he did wrong? The police order Sterling to the ground but as the command is given the officer slams Sterling over the hood of the car onto the ground not allowing Sterling the opportunity to comply with the order. The second officer secures the top half of Sterlings body by leaning on him with his knee, while the other officer straddles his lower torso. The lower positioned officer yells he’s going in his pocket, he’s got a gun. (10) The officer then shoots sterling three times, which is followed by three more shots.
(10): Alton Sterling Shooting: Second Video of Deadly Encounter Emerges, 7/6/16, CNN, Cathy Shoichet, Joshua Berlinger and Steve Almasy. http://www.cnn.com/2016/07/06/us/baton-rouge-shooting-alton-sterling/#
Initially, at 14 seconds into the video it appeared that Sterling’s hand was visible and the officer pulled it down, but upon further review it is more likely the officer who is un-holstering his firearm, or the right hand of the officer in the lower position created shadows that correspond to movement of Sterling’s shoulder appearing that his hand is up and then swiped away by the officer. It is difficult to apply the criteria without knowing the facts, and sometimes video evidence requires advanced analysis.
While the officers clearly escalated the situation creating an unnecessary physical altercation, which would have other implications in relation to the criteria, if Sterling did indeed reach into his pocket, is a lawful use of deadly force. With the gun in Sterling’s pocket, if his hand is in his pocket he becomes an immediate threat as there is no action that can be taken prior to Sterling producing a lethal result, since the weapon can be fired through his shorts. For this reason, as tragic and unnecessary as his death was, and while responsibility clearly rests with the officers ill handling of the situation prior to using deadly force, when deadly force was used, it was used based on Sterling becoming an immediate threat by putting his hand in his pocket with the weapon.
However, while the criteria primarily applies to the immediate circumstances concerning when deadly force was used, the unnecessary escalation, that caused the use of deadly force to be necessary would be taken into consideration under the Prohibition of Forced Imminence provision which states: “The suspect should not be forced into becoming an immediate threat by the action of the officer. This provision is intended to prevent officers from creating a situation where the suspect becomes immediate based on the action of law enforcement.” Since the officers used force unnecessarily, and this misuse of force led to the situation where Sterling becomes immediate, if I were the investigator, I would charge the officer who tackled and slammed Sterling with unlawful use of deadly force by a law enforcement officer based on violating the Prohibition of Forced Imminence provision, arguing the unnecessary escalation of the confrontation caused Sterling to become immediate.
If I were Sterling, who served time for possession of a firearm by a felon, having been attacked and pinned to the ground by law enforcement, knowing I had a pistol in my pocket, considering the cover of the car, my only thought would be to try and slide the gun under the car. If Sterling did reach into his pocket, I believe it was based on this intent.
While Sterling possessed the means and there was no step for action to be taken prior to Sterling producing a deadly result, which means he is immediate, the officer who initiated the unnecessary confrontation would be charged with unlawful use of deadly force, because had he not unnecessarily initiated the altercation, Sterling would not have become immediate, meaning the officer forced imminence.