This is the best bit of reporting I could find on how we got here, in general, with cops shooting people and getting away with it. Graham v. Connor in 1989 was supposed to be a victory for people looking to correct overzealous cops, but it turned into a way for cops to be shielded by common sense.
The case set the precedent that these incidents can only be judged on the exact slice of time that the shooting happened. Nothing before or after matters. This is the key bit:
The Court then explained that, “As in other Fourth Amendment contexts… the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” The Court also cautioned, “The “reasonableness” of a particular 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.”
So, in the case above, the only thing that will matter is that the cops say that it appeared he was reaching for his gun when he woke up. That’s their shield.
Season 3 of the podcast Serial focuses on criminal justice through the perspective of Cleveland. They made the same point - any time excessive or deadly forced is involved all the reports say the same thing - “He reached for his waistband” even when there is no evidence (or evidence to the contrary.) That is indeed all it takes, and judges (and juries) are more than willing to believe the police.
I’m no trained police officer and with the proliferation of guns in this country I realize cops have a tough job, but it seems to me that they saw a black guy with a gun in his lap sleeping in a Mercedes with a broken window and decided his fate without really trying to do anything else. To me it’s one of two things: Cognitive bias (read institutionalized racism) or extremely poor training (or both I guess.) It’s nearly impossible for me to surmise it’s justified.
From that article/podcast, the problem was that prior to Graham v Connor, the courts demanded that prosecutors prove that a cop shooting was premeditated or at least committed with malice of forethought. That was obviously an impossible standard in most cases.
Graham v Connor’s outcome was intended to divorce the motive from the act, so that you didn’t have to prove that a cop meant to murder someone when they pulled the trigger. You could apply the standard of "would a ‘reasonable’ cop in the same situation shoot this person? If not, then you should be able to convict them for assault/manslaughter/etc. Everyone thought that it would become easier to indict and convict bad police.
But the opposite happened. By separating the moment of the act, almost all police shootings are “reasonable” because in that split second, with no other circumstances, a cop can say they thought violence was about to happen and nothing else matters. It doesn’t matter if the victim was clearly addled or walking away with his back turned. Any act the cop deems threatening is justification for shooting.
The institutional racism of juries believing blacks are more likely to be criminals helps here too because in that split second moment a cop should of course expect the black guy to have a gun. Scary black dude drugged out and sleeping in a car? You know he’s about to get in a crip shootout!
Graham v Connor is considered by cops to be their ace in the hole.
I’m a lawyer, but in no way a criminal one, so take this with a grain of salt. Hell, I haven’t even read the full Graham decision. Are you arriving at your conclusion from the wording of the opinion that you quoted, from some legal analysis that you’ve read, or some other source? I see nothing in the quoted opinion that defines “facts and circumstances confronting them” as being just the split second in time when the trigger is pulled.
From the quoted language, I do agree with a large part of your post: the determination of reasonableness is made from the view of the “reasonable” cop in the same circumstances. But that doesn’t limit it to just that split second. Applied to the Vallejo shooting, I think (hope) that means it could include considering everything from the 911 call through to the moment when the trigger was pulled.
How juries and courts have subsequently applied Graham, in actual cases, is another matter, regardless of its language, of course. I don’t know anything about that.
I’m paraphrasing the legal opinions and analysis presented in that podcast I linked.
Justice Rehnquist wrote the majority opinion which said that the 4th Amendment and the objective facts must be considered divorced from the intent of the cop. (This is the part that was meant to undo the prescription that you needed to prove the cop intended to do harm.) Additionally, these cases should be judged from the perspective of the reasonable cop on the scene presented with the facts available to him. Specifically, you should not judge with the vision of hindsight. (This is the part that actually wound up benefiting the cops.) In the podcast, they talk about how grand juries are literally instructed with Rehnquist’s words in most cases, leading to where we are now.
There’s some stunning audio in the podcast of a police union consultant giving a seminar to a room of cops on how Graham v Connor works for them. He plays videos of people getting shot, then slows the videos down to the exact moment of the shooting and points out how in a 2 or 3 frame span, the victim maybe kinda looks like he’s reaching for his pocket. (Trigger warning for sounds of people getting shot and killed.) Good enough. Maybe he’s going for a hidden gun? You’re all clear to shoot!
Without actual case law, I think there’s a distinct possibility that this union consultant is wrong or overselling the situation. Now, that’s still disturbing as hell that that is going on (but I don’t see any clear legal basis for preventing them from doing that) and clearly that type of crap in large quantities leads to terrible outcomes. But them saying it and it being the actual state of the law are two different things. Specifically, we need a case where a court excluded evidence of the circumstances that is anything more than the split second of the shooting. I suspect that if the law is as you seem to think it is, it wouldn’t be hard to find such case law.
I see nothing controversial about the exclusion of hindsight consideration. I agree that it is not reasonable to judge the actions of a cop in that situation from the studied perspective of detailed consideration with the benefit of later information and an abundance of time. I would vehemently disagree with the position that only the split second of circumstances should be considered. If that is the current law, than it is wrong and unjust.
The union consultant is spinning Graham v Connor as the indisputable shield of police shootings, in a seminar about “How to Survive Your Police Career” which is disturbing to laypeople, but probably something demanded by the audience that wants to eventually retire and collect their pensions. Can’t collect that retirement check if you’re in prison for killing an unarmed kid! No doubt that he’s overselling it.
That said, the podcast seems to make it pretty clear that this is common knowledge for cops across the country. Graham v Connor will protect them if they can state that they thought there was a threat just before they pulled their triggers.
