“Being anxious and afraid does not justify attempting to execute a man on his way to go surfing.”

L.A. County District Attorney Jackie Lacey (Credit: L.A. County DA's Office.)
L.A. County District Attorney Jackie Lacey (Credit: L.A. County DA’s Office.)

“Being anxious and afraid does not justify attempting to execute a man on his way to go surfing.” 

 

Except apparently it does, at least if you work in law enforcement. The quote is from the lawyer for David Perdue, one of three people police in Southern California mistakenly fired upon during last Ferbuary’s manhunt for cop killer (and former cop) Christopher Dorner.

This week, the office of Los Angeles County District Attorney Jackie Lacey announced that it won’t be filing charges against Brian McGee, the Torrance officer who rammed Perdue’s truck, then opened fire on him. The DA found that McGee made a “reasonable mistake,” even though Perdue is white and Dorner was black, and Perdue’s truck wasn’t the same color as that reported to have been driven by Dorner.

Part of the reason why McGee’s actions were deemed reasonable is that just blocks away, seven LAPD cops had just fired 100 bullets at a truck driven by Margie Carranza and her mother, Emma Hernandez, thinking they were Dorner. The two women were delivering newspapers. McGee apparently believed Perdue was Dorner, fleeing from that shooting. The seven LAPD cops shot up not only the women’s truck, they also sent bullets flying all over the neighborhood, hitting “cars, trees, roofs and garage doors.” They too have been cleared of any wrongdoing. LAPD Chief Charlie Beck described that incident as “a tragic misinterpretation” by police officers dealing with “incredible tension.”

It’s certainly understandable how police on heightened alert for a suspected cop killer might be a bit nervier than usual. That doesn’t excuse unleashing swarms of bullets at innocent people. To contrast, consider a drug suspect who wakes up to a midnight drug raid. Maybe the police have made a mistake, and this particular suspect is innocent, in which case he’d have no reason to suspect the home invaders might be cops. Maybe the suspect is actually a drug dealer, but mistakes the raiding cops for a rival dealer. The latter is of course less sympathetic. But in both cases, the suspects have every reason to be anxious and afraid. And in both cases, it would be understandable why they might want to defend themselves. In both cases, the decision to do so would be an honest mistake. Both of these scenarios have happened, numerous times. And in both scenarios, the suspects are almost always charged with one or more felonies, whether or not police subsequently find any significant quantity of drugs. If they kill a cop during the raid, they’re going to be charged with murder.

Or consider a hypothetical that’s a bit more on-point: When the D.C. snipers were still at large several years ago, the police and press told the pubic to be on the lookout for a white van. Let’s say you get off work, and return to your home in Virginia. You’re a concealed carry permit holder. You pull into your driveway and notice a white van parked out front. There’s a white man sitting in the driver’s seat. (Remember, the prevailing theory at the time was that the sniper was a white loner.) Your family is in the house. You ask the man to identify himself. You can’t see, but he’s a repair man. He’s filling out paperwork, so he doesn’t see you. He has his radio turned up, so he doesn’t hear you. You open fire.

You too had good reason to be anxious and afraid. You too were relying on bad information, and made a mistake about the identity of the driver. Do you think you’d get the same consideration the DA’s office has shown to the cops in Torrance and Los Angeles?

Of course, police are authorized to use lethal force. The rest of us aren’t, unless we believe ourselves or others to be in imminent danger of grave bodily harm. (That’s a generalization; the specific legal standard varies by state.) But the police also have the benefit of training. To borrow from my former Cato Institute colleague Tim Lynch, there’s a good argument that they should be held to a higher standard. And there’s a good argument that they should be held to the same standard. It’s hard to think of a convincing argument that they should be held to a lower one.

A mindset that kicks in among police officers when a cop gets killed, particularly if the killer remains at large. Doors come down. Suspects get beaten, sometimes severely. Sometimes, it’s the wrong suspect. As Perdue’s attorney Christopher Driscoll put it in an interview, “”When an officer is injured, or goes down, or is threatened, the team mentality really steps up. You have that concern that individual citizens’ rights are going to get trampled when the officers are attempting to get justice for their brothers.” It’s a mindset that’s endorsed in the popular culture. We’ve all seen TV cop dramas where, when a fellow cop is shot or killed, his colleagues get in a couple of extra kicks when arresting a suspect. There’s a little more physicality in the interrogation room.

Again, this sentiment is perfectly human, and it’s entirely understandable. But it’s also dangerous, and it can’t be encouraged. The lesson from the DA’s decisions in Los Angeles—as well as the failure to administer any significant professional punishment—is that when a cop goes down, we suspend the Bill of Rights until the killer is apprehended. Perhaps if David Perdue, Margie Carranza, or Emma Hernandez had been killed in one of these incidents, the DA may have acted differently. Certainly there would be more public pressure for an indictment. But it shouldn’t need to come to that.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book "Rise of the Warrior Cop: The Militarization of America's Police Forces."
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