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We’re asking the wrong question about police shootings

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The video below depicts the fatal police shooting of 38-year-old Jason Harrison in Dallas last year. Harrison’s mother had told the police that her son had been making threats, and that he was “bipolar schizo.”

More from the Dallas Morning News:

Police officials have previously said the body camera video backs up the officers’ accounts of self-defense, showing a fast-unfolding event in a tightly confined space. They were protecting themselves, police said.
Dallas police said Monday the department has completed its internal investigation into whether the officers broke any laws. The department did not make a ruling on that issue and instead forwarded the file to the Dallas County district attorney’s office, said police spokesman Lt. Jose Garcia.
Internal investigators are still reviewing the case to see if the officers violated any policies, Garcia said.
The two officers, John Rogers and Andrew Hutchins, are back on full duty and the case is awaiting review by a grand jury. Both officers had been on the force for more than five years at the time of the shooting.

I’d be very surprised if the grand jury indicts these officers. And I’m not sure it should. But the video is a great argument for changing the way we think about killing by police officers. From Eric Garner to Tamir Rice to the countless other shootings and initiations of force to make headlines in recent months, we’ve waited for grand jury investigations to pronounce a shooting legal or illegal, or a DA to pronounce it justified of unjustified, or for an internal investigation to deem it within or outside of a police agency’s policies and procedures.

But I recently spoke on a panel at the University of South Carolina with the former police officer and now law professor Seth Stoughton. He made a point that I think is critical in how we think about these incidents: We shouldn’t be asking if the police actions were legal or within department policy; we should be asking if they were necessary. Or if you’d like to use a word with a bit more urgency behind it, we should ask if they’re acceptable.

Asking if a police shooting was legal tells us nothing about whether or not we should change the law. Asking whether or not it was within a police agency’s policies and procedures tells us nothing about the wisdom of those policies and procedures. Of course, both of those questions are important if your primary interest is in punishing police officers for these incidents. But while it can certainly be frustrating to see cops get a pass over and over again, even in incidents that seem particularly egregious, focusing on the individual officers involved hasn’t (and won’t) stopped people from getting killed.

Let’s go back to that Dallas shooting. Unfortunately, the video camera doesn’t capture the critical moments immediately prior to the shooting. But it does capture the initial police contact with Harrison. Let’s assume for a moment that the police account of the incident is 100 percent true — that Harrison did come at them with the screwdriver. The question we should be asking isn’t whether or not the police decision to shoot Harrison at that moment was justified. The question we should be asking is whether the interaction ever should have reached that moment. Or, to go back to our more basic question: Was this shooting necessary?

The video strongly suggests that it wasn’t. Why were two patrol officers responding to a call about a possibly schizophrenic man? Would it be better for a mental health professional to have accompanied them? If Dallas police officers are going to be the first responders to calls about mentally ill people who have possibly become dangerous, are they at least given training on how to interact with those people? Are they taught how to deescalate these situations?

From the video, it seems clear that these particular police officers did the escalating, not Harrison. It’s the cops who begin yelling and who take a confrontational stance. Yes, Harrison was holding a small screwdriver. And yes, in the right circumstances, even a small screwdriver can do a lot of damage. That doesn’t mean you pull your gun on everyone who is holding a small screwdriver. Now, there’s probably nothing illegal about a police officer unnecessarily escalating a situation with his words or his body. There’s certainly nothing illegal about his failure to deescalate.

But that’s precisely why Was this illegal? is the wrong question. The better question is, Was this an acceptable outcome? And if the answer is no, then the follow-up question is, What needs to change to stop this from happening again?

Former Madison, Wis., police chief David Couper recently addressed this topic on his blog.

Fixing this system will not be accomplished by investigating and charging bad cops or criminals after the fact. It can only be fixed by looking at how police are trained and led. My analysis is that it is the system that needs fixing and we are fooling ourselves if we look at these incidents singularly and not as a collective example of things gone terribly wrong and in need of immediate repair.
I have to add here that the U.S. Supreme Court’s decision, Grahm v. Connor has a lot to do with this problem. Their decision effectively permitted a police officer to legally use deadly force based on whether the officer reasonably believed his or her life was in danger; called “reasonable  objectiveness.” Before this decision, officers were expected to use only the minimum amount of force necessary to overcome resistance. Add to this decision the fear every police officer has that he or she could be disarmed and shot you have a “perfect storm” of police using deadly force in almost any situation involving resistance.
Historically, this is not new ground for police leaders. Just because an act is legal, it may not  necessarily be moral. And that’s where leadership comes in. Leaders set the moral standard for police conduct in these situations.

I think the Supreme Court has generally done a pretty lousy job of balancing police powers with constitutional rights, in part because the court has historically been populated by justices who have little to zero experience in criminal law. But Supreme Court rulings only provide a ceiling for police conduct. That is, the court determines only the limits to what the police can do. As a society, as a state, or as a city, we can collectively determine that those legal limits are producing too many outcomes we find morally unacceptable, such as a man getting killed for selling untaxed cigarettes, a boy getting killed for waving a toy gun, or a mentally ill man gunned down for holding a screwdriver.

So how do we get there? The most obvious way is to change the laws. That can be difficult, although the political landscape is changing on these issues. But Couper hints at a more accessible route to reform. We need good local leadership. (I should add here that this particular incident notwithstanding, Dallas Police Chief David Brown seems to be one of the better police leaders in the country.) The officials who oversee police policies are far more accountable — and accountable on these particular issues — than your typical state representative or member of Congress. Sheriffs are elected. There’s no reason use of force policy and deescalation training shouldn’t be among the issues discussed in a sheriff’s election. District attorneys can also wield influence over the use of force policies at the police agencies in their districts. Mayors usually pick police chiefs, and city or county councils often have to approve them. The people who run for these offices could certainly be asked to articulate how they would govern on police matters.

Over the past year or so, the police reform movement has achieved some enormous success in raising awareness about police brutality, police use of force and police shootings. But if the goal is to prevent unnecessary deaths, the focus needs to shift from demanding indictments of individual cops, filing civil lawsuits and looking for validation from national leaders to electing policymakers who share the reform movement’s goals. Yes, we have some bad cops. And there’s also a problem with the good cops covering for the bad ones. But if the laws and policies that cops are expected to follow — and by which they are evaluated — are flawed, directing reform efforts at punishing bad cops isn’t going to help.

We can’t stop after asking, “Was this shooting legal?” and “Was this shooting within department procedures?” The more important question is, “Do we find this shooting morally unacceptable?” If the answer all of these questions is yes, then the problem is much bigger than the cop, the police union or the police department.