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Defaulting to the State
Police Ofc. Jeronimo Yanez and Philando Castile.
David French has written twice about the verdict in the Philando Castile case: the first when the verdict came down; then again when the dashcam video was made public. Of Yanez (the officer who shot Castile) he wrote, “he still panicked, and he should have been held accountable. The jury’s verdict was a miscarriage of justice.” After the video was released, he wrote why he believes the verdict came down as it did. “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.” [emphasis mine]
This is not the only unwritten law we follow in our criminal justice system. We’ve built and operated the entire thing to default to the defendant over the state; some would say we do so to a fault. The idea was first espoused by Voltaire who wrote in 1749, “that ’tis much more Prudence to acquit two Persons, tho’ actually guilty, than to pass Sentence of Condemnation on one that is virtuous and innocent…” which was expanded by Blackstone in 1783 to be “For the law holds, that it is better that ten guilty persons escape, than that one innocent suffer…” and multiplied in 1785 by Benjamin Franklin to read “That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved.” When the power of the state is brought to bear on a citizen, we’ve held that it is a greater injustice to imprison the innocent than to set free the guilty. My question is this: does the maxim hold when citizens are holding the state to account?
Jeronimo Yanez did not unholster his weapon as a citizen. He did not fire seven shots lethally into the body of Philando Castile as one either. He did so with the full power and authority of the government. In his interaction with Castile, Yanez was the state. The state killed a citizen for no reason greater than fear. If we default to the side of the citizen in cases where liberty is at stake, then why do we default to the state in cases where life is lost? Why do we follow the unwritten law that when an agent of the state is afraid of a citizen, he is permitted to take the citizen’s life?
Published in Law, Policing
Not own a gun.
Kept his hands on the wheel for starters.
He wan’t murdered. What was the verdict ? The officer was acquitted of manslaughter .
He was instructed by the officer to produce his license which he was in the process of doing when he was gunned down.
Jurys acquitt the guilty all the time. That OJ was acquitted doesn’t negate the fact that a murder took place.
Reason is, naturally, a little harder on the cop in this case.
I have such a huge issue with this. Not speaking to the Yanez case (I don’t think he was abusing power), but to a general case – the accepted philosophy of the 2nd Ammendment is not just self defense against fellow citizens, but self-defense against the state.
What you argue (and every law that forces you to leave a gun in your trunk, unloaded, in a lockbox) effectively disarms the citizenry in the most common case of our interaction with the state – traffic stops.
What good is the 2nd ammendment if we can’t be in posession of a gun in police presence?
Maybe we should go back to quickdraw school. You pull yours, I pull mine faster.
If Castillo had been fearful for his life, does he get off shooting a cop?
No one says otherwise.
I know I’m repeating myself, but the point still stands: By referring to Yanez as, “The State” you dehumanize him and allow yourself to ignore that he is a human being who made a mistake. No one is saying there should be no consequences; If you want to argue that Yanez is unfit for duty, a case can be made for that, but the sense I’m getting from you and French is that nothing less than prison will do. This is justice-as-outcome rather than justice-as-process thinking.
Disclaimer: Not a cop, wasn’t on the jury, loss of life is a tragedy.
“The unwritten law is simple: When an officer is afraid, he’s permitted to shoot.”
“If we default to the side of the citizen in cases where liberty is at stake, then why do we default to the state in cases where life is lost? Why do we follow the unwritten law that when an agent of the state is afraid of a citizen that he is permitted to take the citizens life?”
Quotes from the original post.
The unwritten rule is not simple, simply for the points @doug_watt made earlier. This is part of the reason why things have changed and are changing. Cases of improper policing (ie planting evidence, poor professionalism, and worse) have had no choice but to change with the dash cam era. There is now an objective video record for review. I will admit I do not have the objective data nor the experience but my impression is the police have a much tighter leash than say in the 60s. There can be further improvement but do not ignore past accomplished improvements.
And there is not default, but deference. A default would be no trial and a known outcome everytime the circumstance met your criteria of loss of life at the hands of a cop. For the same reason, there is no default for any alleged crimes; you have the right to a trial and a jury of your peers where the written law is applied to each situation where infraction is alleged to determine justice. There is no default because in each of these publicized circumstances we wait for the legal and public cases to be made on the facts and for the ultimate outcome is news. We submit the officers to a legal process and often a jury of their citizen peers; there is no military justice system equivalent for police.
There is without question a deference and I submit it is prudent. If we as a society are going to agree that the mutual protection of cities and municipalities is going to disproportionately fall on a minority who volunteer to take a disproportionate risk for injury and loss of life, then we must understand burden of what we ask of them and the choices and situations the protect us from making. If we are going to require that such volunteers are going to be armed and trained in the use of force to maintain safety and order, then we will defer that their experience and training is done with it being a measure of last resort or best option in a bad situation. And when there is use of deadly force, we should make sure that there is a proper investigation with external investigators in some capacity and results inform the process of justice and future training.
It seems like you’re upset about the outcome based on the story as you see it based on the video you’ve seen and the facts you know. You’re entitled to it. However, it seems unproductive to 1) blame a system or mindset for perceived similarities without acknowledging the differences in the individual cases or disparate jurisdictions and 2) not offer possible solution given 1.
Walker provides some example of solutions. http://archive.jsonline.com/watchdog/watchdogreports/gov-scott-walker-expected-to-sign-police-custody-bill-b99253819z1-256342301.html .
Also, I don’t think perpetuation of viewing cops through the most unforgiving of lenses is going to improve the sentiment in our country. This is going to get much worse before it gets better. Here is Hollywood’s helping hand.
And yet why punish human beings for their mistakes, unless they’re cops acting out of fear. The simple fact is that if this had been an ordinary citizen the outcome would likely have been very different – the fact that Yanez was an agent of the state afforded him deference no one else would receive in that situation. That matters.
Washington State law has a section for police and a section for “others.” The biggest difference I can discern about the self defense parts is that citizens are required to show that “there is imminent danger of such design being accomplished” while police officers are only required to see a weapon (essentially) and reasonably believe the display of the weapon is threatening. The state gets wide latitude, the citizen narrow.
This. My whole point in three sentences.
Yours is better wording than mine. Is that deference justifiable, and does it align with our nation’s political philosophy? Is deference to the power of the state (especially in the most extreme situation where life is lost) how we want the relationship between the citizen and the state to be organized?
I’ve been sifting through news stories and it appears the jury decision hinged on culpability, and possibly on the fact that the state could not prove beyond a reasonable doubt that Officer Yanez did not see a gun in the pocket that Castile was reaching into. Once again the standard disclaimer, the media may not have all the facts and without a pdf of the trial transcript we do know at this time what the judge’s instructions were to the jury.
I have provided a link to the Oregon Revised Statutes on culpability because I’m familiar with Oregon law from time as police officer in Oregon. 2015 ORS 161.085 Definitions with respect to culpability. Subsections 6 through 10 are the most applicable definitions. Words such as “Act”, “Voluntary”, and “Omission” have specific legal definitions.
From the definitions you move to 2015 ORS 161.095 Requirements for criminal liability.
Maybe my comment was unclear. I argued the deference was prudent and justifiable. I would also submit as evidence of our politics that there is not one national philosophy right now. It may help to elaborate your impression of the correct national philosophy, but that’s another post.
I agree with others on the thread that by calling the officer the state you are dehumanizing him and playing the left’s otherizing game. Let’s mad lib.
“Is deference to the agent of force how we want the relationship to be between the citizen and the citizen who has taken the responsibility and risk of maintaining safety and order in a society respectful of individual liberty and self defence with the customary arrangement of local police powers to be organized?”
For context, I’ve had an officer have his gun unholstered in an interaction with me. I played lacrosse. We practice by throwing the rubber ball against a wall. The outdoor school wall I was playing on was crap and the gym door was barely cracked open. The smooth painted cinder block wall of the gym seemed like a better option. I tripped a silent alarm. Twenty minutes after opening the door and continuing to practice, an officer came through the door announcing himself with gun unholstered. I literally dropped my stick, put my hands up as high as they could and said “I’m sorry officer.” After things calmed down, he ran my license, and called my dad, I asked him why he had his gun out. He told me “You could have been stealing computers and you could have been armed.” Regardless of any context points I could have rebutted with (it’s midday on a weekend, there are people around, the sneaker sounds on the gym floor, these crappy public high school computers), his reasoning could be justified. That was his worst take on the situation and he was prepared. I was where I shouldn’t have been and he was making sure things were safe. He was owed all the deference in the county and I needed to not be a punk.
Why should any agent of the state be afforded different legal standards? If anything shouldn’t we hold them to higher standard?
You don’t know what he was doing. Pure conjecture on your part.
What I know for sure from watching the videos–the passenger’s video first and then the officers’ dash cam–is that this particular police officer did everything wrong. Yanez is a loose canon in every way. He has said he was upset about the smell of marijuana coming out of the car:
He was so concerned about the “secondhand smoke” that he then shot the five-year-old’s parent in front of the five-year-old? He didn’t think to stop yelling and try to calm the situation down for the sake of the five-year-old so she would be not be harmed if the situation escalated?
This was simply not rational decision making.
Until about fifteen years ago, the town I live in had a strange way of doing things. Our board of selectmen reserved the right to interview all police officer candidates before they were hired. Our selectmen were quite open about the purpose of the interviews: they wanted to know the people who were being given guns by the town. (Left unsaid was that this was a character and mental stability check.) And we had a great police chief who agreed with the practice. You can fool one person in one interview perhaps but not six people in six interviews. Hiring decisions had to be unanimous among the selectmen. Coincidentally, we had one of the best police forces in the state, which is no small feat given the number tourists we have here each year. We use a lot of academy students for extra police during the summers. Our population triples over the summer.
Officer Yanez should not have been given a gun or authority in the first place, in my opinion.
Private citizen v. Police officers
There is a difference between a private citizen and a police officer, once again I’ll give you the basic Oregon law.
A private citizen has no duty to act if they see a crime being committed, a police officer does have the duty to act.
A private citizen must see the crime being committed, a police officer does not.
A private citizen cannot detain anyone unless they witnessed that person committing a crime, a police officer may detain an individual without having witnessed the crime.
A private citizen may not detain anyone for a violation. (a violation is an offense that does not call for imprisonment). A police officer may detain someone for a violation.
In the State of Oregon private security officers are considered private citizens
I’m in possession of mine all the time. I keep my hands on the wheel. The officer told him 3 times not to reach for his gun. A jury believed that. You have no evidence to the contrary.
What else would he have been doing after announcing to the police officer that he had a gun and then being instructed to produce his license?
The office also instructed him to produce his license. Describe to me the process by which he could comply with the officers directions and keep his hands on the wheel.
Statistically speaking, a police officer tasked with your safety and his own has a higher likelihood of being in a situation where the use of deadly force is considered. Given there are more opportunities where a cop will fire or be fired upon, he should be afforded the legal understanding that since his community has tasked him to be armed and deal with violent disorder, the appropriate use of force is protected. Appropriate use for someone responding to a call where violence is always a possibility should be different to ensure they continue to walk away from those situations and return the next call. Let me be clear, improper use should be condemned, investigated, and sought to be avoided with extensive and continually improved training.
If you want it to be equal, I think a rational suggestion would make the risk more equitable and the common citizen can provide for their own defense. Or have unarmed cops like other countries but I would imagine police academies would have a few open slots.
The second amendment isn’t for traffic stops. It’s for a ready civil defense from an existential threat, it’s for the means to overthrow an unjust government, it’s for personal self defense, it’s for recreation. It is not for shoot outs during traffic stops. If the officer does something wrong then you can have your day in court; if you are dead then the officer will face penalty and trial. We have a system of self government and the second amendment is meant to protect it – not to overrule it during a traffic stop.
The officer clearly thought he was reaching for his gun. He told him 3 times not to.
What evidence do you have to the contrary. Or is that your “feeling”?
” Officer, my wallet is in my left rear pocket. My gun is by my seat on the right side, do you want me to reach into my left pocket?”
And as soon as the office says stop. you stop.
Do you know where he kept his wallet and his gun or is this just conjecture?
I’ve watched the video. The time between being told to stop and the first shots is measured in seconds. The cop panicked.
He told him three times in the span of a few seconds. I’ve watched both videos.
Yeah I know what you mean. Those sick twisted fellas who administer the lethal injection for the death penalty – hell if an ordinary citizen does that then they’d be charged with murder. Down with the state!
Ordinary citizens aren’t empowered with general law enforcement authority. Ordinary citizens aren’t empowered to make traffic stops and to demand someone provide their drivers license. Police officers are empowered to do exactly those things by we the people; if the officer acts recklessly or maliciously then there are civil remedies which don’t include deciding the matter yourself right there on the spot and deciding that you get to presume you are in the right to respond violently.
The whole point of French’s piece is that there is an unwritten law, a deference as it was better stated here, to give police wide latitude when evaluating their use of force. The officer has his day in court, but is judged by a different and more lenient standard than the ordinary citizen. My question is why we give wide berth here where life is at risk or already lost, when in all other things we (theoretically) give government a narrow path and keep a firm hand on its leash. For the small things we’ll be strict, but for the biggest of them all we’re slack. It makes no sense to me.
I also think that the conflicts I have read about over the last few years consistently point to a recurring problem for drivers: how to produce the license and registration in such a way that the police officer does not feel threatened.
If the driver reaches into the glove box, the officer will be nervous because it is a compartment big enough to hold a gun. If the driver keeps his or her licence in his or her wallet, reaching for it will cause the officer to be nervous that the person is possibly reaching for a gun.
There has to be a way to smooth out these encounters.
I imagine electronics could eventually fix these problems most of the time. When a driver gets into a car, he or she puts his or her hands on a smart steering wheel that immediately recognizes the driver. The driver’s license and the car registration are then fed to a sensor outside the car so when the police approach a car, they can access the information they need without the driver’s help to do so.
They shouldn’t, and they aren’t. Keep in mind this entire debate is about so-called, “unwritten law,” which has no basis in any actual law. What this is is an attempt to turn a disagreement regarding the jury’s judgment into something sinister. As I said before, it’s classic justice-as-outcome thinking; King Prawn and David French don’t like what the jury decided and have concluded that something stinks rather than drawing the simpler and less ominous conclusion that the prosecution simply failed to make its case in a fair trial.