“Without Malice and/or in Good Faith” is Necessary when Judging Police Actions

Setting aside that making life and death decisions in split seconds is one of the most difficult things for any police officer, what’s all this noise about changing Washington law to make it “easier” to prosecute cops for using deadly force?

People in every profession make mistakes. But in some jobs, mistakes can mean people die. Perhaps mistakes that lead to death should never happen, but in real life, they simply do.

The way I read the law change proposal, advocates want to remove the “malice” and “good faith,” elements from the prosecutor’s requirements to convict a police officer. Meaning, they have to prove the officer acted maliciously (evil intent) in killing a person or that the officer did not act in good faith—knew his or her actions were wrong.

This is what is scary for a police officer: If the language were changed, an officer could have acted without malice and in good faith yet still be prosecuted for murder or manslaughter.

Put yourself in the officer’s place:

Let’s say you’re an officer, it’s dusk—almost dark, on an early winter evening, and a robbery victim flags you down. The victim is pointing to a fleeing man and yelling, “He took my iPhone, and he’s got a gun!” You chase the robbery suspect who runs across the street and then between the houses. You continue to pursue with the suspect in sight. You broadcast the suspect’s description and direction of travel over your radio. Then you lose sight of the suspect as he rounds the corner to the back of a house. You slow as you approach the corner of the building to avoid being ambushed.  

You slowly round the corner. You see a young man matching the suspect’s description crouched near some shrubbery in a corner of a fenced yard. You pull your gun and command, “Show me your hands!” The man does not comply. Instead he asks you what you’re doing in his yard. You command the man show you his hands several more times, but the suspect still refuses to show his hands. As you tell the man once more to show his hands, he yells that he doesn’t have to and aggressively points an object at you. In the low light and based on the suspect you’re chasing reportedly being armed, the object could be a gun. Would you bet your life that it isn’t a gun? You fire your sidearm, killing the man.

Later, investigators discovered that the man shot was not the suspect. Evidence shows the real suspect had run through the yard and jumped the fence and continued running. The deceased man actually lived at the house. Investigators don’t know if the man saw the suspect run through his yard. The object the man had pointed at the officer was a garden trowel.

This is nothing but a pure tragedy. It can’t be described any other way. If you, the officer, were white and the homeowner black, it also would become a political calamity. Now, there are a many elements to consider here, but let’s stay within the realm of changing the “malice” and “good faith” language in the current law.

Clear thinking people would instantly recognize the nature of the tragedy here and understand you had no choice but to shoot. However, these days we are not dealing with only clear thinking individuals. We are dealing with anti-police hysteria.

You obviously did not have any malice, as you simply responded to a victim’s call for help—you did your job. You also clearly acted in good faith as you had a valid complaint from a legitimate victim who identified a man he said had a gun and had just robbed him. This is also the ONLY information you had to work with at the time.

You were chasing an armed robbery suspect. In the shadowy low light of dusk. Alone.

You had the suspect in sight until the suspect disappeared behind a house. Officer safety dictates you slowed to avoid an ambush. You updated radio with your current location for responding back up officers.

Using proper officer safety techniques, you rounded the corner and observed a man matching the suspect’s description. He appeared to be hiding in the bushes. You do not know the man lived here, and even if he did, the man could still be the armed robbery suspect.

You radioed you had the suspect at gunpoint in the backyard and gave the address. You, without malice, using proper police procedures, and acting in good faith, fully believing this is the robbery suspect you’d been chasing. The suspect refused to show you his hands when instructed. The victim had told you the suspect was armed with a gun. As a trained police officer you knew just how fast an armed suspect could point and shoot if he wanted to. Rather than immediately open fire (the safest course for you) you ordered the man—repeatedly—to show you his hands.

The man would not comply. Instead, he asked you why you’re in “his” yard. You may have wondered if it was the man’s yard, but you could not automatically believe this. You had to proceed as if the man was the suspect. To do otherwise would have been foolish.

We can’t forget the man is refusing to comply. If the man had simply put the trowel down and shown you his hands, the officer would have had the man lay on the ground and most likely waited for back up officers to assist taking him into custody. After which, his true identity would have been determined.

But, what should have happened didn’t happen. Sadly, the man contributed to his own tragedy. He refused to obey a police officer’s lawful commands—for whatever reason, and a man who shouldn’t have died, died. But it wasn’t your fault. You did exactly as the police department trained you to do. Shouldn’t that be enough? Yes, but it’s not.

Now, am I wrong to wonder, with a change in the law, what would happen to you? Without the malice/good faith language, could you be convicted of criminal homicide because somehow, anti-police, Monday-morning quarterbacks decided you “should have known” the man was the resident, not the suspect, and had a garden tool and not a gun. How could you have known? The best you could have done would be to guess. And what if you were wrong? The man did everything but wear a sign saying you should believe he was your suspect. Still, with new legislation, you could be in serious trouble—for doing your job.

Remember the Cambridge police officers who detained Professor Henry Louis Gates Jr. after someone reported Gates as a possible burglar at his home? Even President Obama concluded the officers acted “stupidly.” But how in the world were the officers supposed to know Professor Gates was who he said he was simply by his word? Isn’t that what a criminal would say? They’ve said it to me in similar circumstances. Again, they don’t issue cops crystal balls in the academy. So, if a simple detention is deemed “stupid,” what would they say about an incident where police shot a man?

Governments at all levels are horrible at teaching the public what police do and why they do it. When a high-profile incident occurs, too many leaders would rather “teach” the public what the cop did “wrong,” even if it was “right” when he or she learned it in training. And if the officer is truly wrong and legally judged to be so, then let the punishment fit the crime. But when officers act as they were properly taught, how about government and law enforcement leaders start teaching the public that, though things turned out wrong, what the officer did was right.

 

 

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