Last month, on the heels of a string of high-profile police killings, the nation again witnessed two fatal police shootings: one in El Cajon, California and the other in Charlotte, North Carolina. Both fatal encounters triggered street protests and acts of civil disobedience. The police defended their actions in both incidents, saying the suspects were either armed or displayed aggressive actions toward the officers involved in those incidents.


Alfred Olango


In the El Cajon case, the police confronted Alfred Olango, who was emotionally distraught because of the recent death of a close friend. The confrontation stemmed from a 911 call reporting that a man was acting “erratically” in the street. When the police arrived, Olango had his hands concealed in his pockets pacing back and forth before he suddenly went into a crouched shooting stance with an object in his hand. The police responded with fatal gunfire. The object turned out to be a vapor pen.


Keith Lamont Scott


In the Charlotte, the police confronted Keith Lamont Scott, who reportedly was observed rolling a marijuana cigarette. The officers ordered Scott to exit the vehicle he was occupying. He reportedly did so, but had a weapon in his hand. Scott was fatally shot multiple times after the police said he refused to drop the weapon.


Both police shootings, whose circumstances are still being investigated, raise the legal question of when the police are justified in using lethal force.


Lethal Force in the Fifth Circuit


The Fifth Circuit Court of Appeals just last year answered this question in the case of Cole v. Carson.


That case involved the non-fatal shooting of 17-year-old Ryan Cole who was “severely injured” in an armed encounter with police in Marshal, Texas. The teenager’s parents brought a federal civil rights lawsuit against the officers involved, alleging that they violated their son’s Fourth Amendment right not to be subjected to excessive force. A U.S. district court had rejected the officers’ claim of immunity and the appeals court upheld that lower court ruling.


Ryan was a junior in high school. He suffered from an obsessive-compulsive disorder. The teenager was armed when the police confronted him in October 2010. He had the gun placed to his own head. At some point during this encounter, Ryan reportedly pointed the gun at one of the officers who opened fire, severely wounding the teenager.


In analyzing the Fourth Amendment’s prohibition against excessive force claim, the Fifth Circuit said that to establish such a claim the plaintiff was to prove that “the force used was objectively unreasonable.”


Force Must Be Objectively Reasonable


The appeals court said this requires an assessment of the “facts and circumstances” of each case in order to determine just how much force is “constitutionally permissible” in a given case. This assessment requires to trial court to consider “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.”


The first paramount issue is whether the force used was “reasonable.” The first factor considered in making this preliminary determination is “the severity and immediacy of the threat of harm to officers or others …” The second factor, the appeals court said, is the “’intrusiveness of a seizure by means of deadly force is unmatched,’ and that the use of force ‘must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”


Threat Must be Sufficiently Substantial and Immediate


The Fifth Circuit made it clear at the outset of its legal analysis that the “use of deadly force, absent a sufficiently substantial and immediate threat, violate[s] the Fourth Amendment.


It is the totality of the circumstances leading up to the actual firing of the fatal shots that determine whether a “threat” is immediate.


Presence of Gun Alone Not Enough


Most people would assume that the alleged presence of a gun or aggressive behavior as in the Charlotte and El Cajon shootings would constitute an immediate threat. Not necessarily so, said the Fifth Circuit:


“The fact that a person has a gun and is behaving in a dangerous manner does not necessarily constitute an immediate and serious threat justifying use of deadly force. In unpublished but persuasive decisions, we have denied qualified immunity where a person, though undisputedly holding a gun to his own head, was complying with officers’ orders and where a person, reportedly armed and a suspect in a double-homicide, has ceased running and had his arms at his sides. When we have found officers justified for shooting suicidal people who were armed with guns, we have depended on the victim’s additional threatening ‘Manis’ acts and disobedience of police commands, which elevated the immediacy and severity of the danger.”


Sufficient Threat Must be Imminent


In effect, the mere presence of a gun, which “poses some deadly risk to officers and others,” does not automatically justify a fatal shooting. The Fifth Circuit crystalized the justification to shoot this way: “The threat must be sufficiently imminent at the moment of the shooting to justify deadly force.”


This reasoning is especially significant to the fatal shooting of Keith Lamont Scott by the Charlotte Police. Assuming Scott had a gun, that alone did not justify the police killing him – and apparently that is the only reason he was killed. The police said they shot him because he refused to drop the gun. There is no evidence in the public record to indicate that Scott pointed the weapon at the officers or threatened to shoot them. Thus, under the Fifth Circuit rule, the presence of the gun, absent more threatening behavior, did not justify his fatal shooting at the hands of the police.


Recent Cases Nationwide Lack Requisite Specific Threat


The Alfred Olango case is even less threatening. The officers were told by the 911 called made by Olango’s sister that he was not armed and was mentally ill. The officers never saw a weapon and Olango did not make any threatening moves toward the officers. While he may have assumed a crouched shooting position, that alone did not show a “sufficiently substantial” threat to warrant his fatal shooting.


The bottom line is this: the police cannot shoot and kill citizens based on perceived threats alone. The threat must be “sufficiently imminent” to justify shooting a citizen, and the “facts and circumstances” in the public record surround the Scott and Olango shootings do not establish that the officers faced a “sufficiently imminent” threat to justify their use of lethal force in those cases.


We believe the police have a lawful right to react with lethal force when they face a “sufficiently imminent” threat, but they do not enjoy constitutional protections for killing people when some threat is merely perceived by the officer. The police are currently trained to “shoot and ask questions later.” They are not trained about how to be prudent and reasonable before they squeeze off a fatal shot. They uniformly believe that the mere presence of a gun or the exhibition of any threatening behavior justifies the use of lethal force.


Fortunately, that is not the rule of law—at least not in the Fifth Circuit.


The criminal justice system has been plagued with a series of high profile shootings that defy any rational explanation.  In many of these cases, the was no sufficient cause that would justify use of deadly force.  Most of these unjustified shooting involved African-Americans and Latinos and would have most likely been swept under the rug had they not been capture by individuals with smart phone video.


It is undeniable that the criminal justice system has historically been infected with systemic racism, allowing police officers to escape justice for illegal and immoral acts committed against members of the community they serve.  This fact, coupled with a militarized police force who is trained to demand immediate compliance, and will shoot rather than de-escalate, has led to countless unnecessary murders of civilians at the hands of law enforcement.  It is time to demand system wide criminal justice reform, that our officers treat everyone in the communities they serve with respect and professionalism and that they be removed from the force and prosecuted if they abuse their official positions.  Enough is enough…