Early Tuesday morning, two Baton Rouge police officers shot and killed 37-year-old Alton Sterling, a black man who was selling CDs outside of a convenience store. Cell phone video of the shooting shows Sterling seemingly incapacitated on the ground when one officer yelled, “He’s got a gun!” An officer — according to a witness, not the officer who shouted — then drew and fired his gun into Sterling’s chest. More shots ring out in the video. Sterling died of multiple gunshot wounds. The Department of Justice has already announced that it will investigate.
According to press reports, the police had been called after someone reported that a man dressed in red selling CDs had pointed a gun at someone. Sterling was wearing red and allegedly had a gun in his pocket. The witness to the shooting — the owner of the convenience store — said the cops seemed aggressive from the start. The witness also said that Sterling was complying with the officers, and that he wasn’t holding the gun, nor did he have a hand near the gun when he was shot. In the video, one of Sterling’s hands is clearly not a threat, but his other hand isn’t visible. There’s also body camera and dash camera footage that has yet to be released.
From what we know right now, this appears to be another case of police officers deploying lethal force that was likely legal, but was also unnecessary. The witness’ observation that the police officers appeared to be escalating the situation isn’t contradicted by the video, but the video also doesn’t definitively prove him correct. A police officer can use deadly force if he believes his life or the lives of others are threatened, and if that belief is objectively reasonable. Here we have a witness who says Sterling posed no serious threat, and video that strongly suggests but doesn’t completely the witness’ account to be valid.
Here’s a scenario that fits both the evidence and the officers’ reaction: As the two were struggling with Sterling, one officer found the gun in Sterling’s pocket and yelled “He’s got a gun!” — meaning “I just found a gun in his pocket.” The other officer interpreted “He’s got a gun!” as “He’s got a gun in his hand!” A man on the ground with the police on top of him who has a gun in his pocket is not a threat, particularly if he isn’t reaching for it. A man on the ground with the police on top of him with a gun in his hand is most certainly a threat.
If this is indeed what happened, then the officers miscommunicated, and the miscommunication caused them to kill Sterling. That likely isn’t a crime — at least for the first shot. But if the witness is correct about the officers acting aggressively, the miscommunication was likely caused by heightened volatility and peril. And the heightened volatility and peril were caused by the escalation. That the officers escalated is also supported, but not completely proven, by the video. THe audio to the video picks up just as an officer is screaming at Sterling to “Get on the ground!” Seconds later, we see them tackle Sterling and throw him to the pavement.
Was Sterling resisting? It’s difficult to say, as is often the case with these videos. He may have been. But what looks like resisting often isn’t conscious fighting back or an affirmative attempt to hurt or injure police officers so much as instinctual self-defense. If the cops bend your arm in a way that it doesn’t want to bend, you feel pain. Your body tells you to resist whatever or whoever is bending your arm in that manner. So you push back. That isn’t aggression; it’s a natural product of our aversion to pain. Similarly, a suspect flat on pavement with a knee in his back or with multiple officers putting their weight on him may try to lift his chest. That can look like the suspect is trying to get up, resisting orders, and possibly trying to attack the officers. But he may also simply be trying to create some space to breathe. Many people panic when trapped under a lot of weight. Panic isn’t also aggression. It’s an attempt to survive.
All of which is why training police in de-escalation is so important. Physical confrontation like the kind we see in this video immediately raises the stakes and narrows the margin for error for everyone involved. A misheard directive, a misinterpreted gesture, or any other miscommunication can quickly become fatal.
Perhaps in the coming days we’ll learn that in this particular situation, the officers had no choice but to take Sterling down, though the video at least suggests otherwise. Yet we’ve see way too officer-involved shootings in recent years in which the officers’ perception (or misperception) of the threat was reasonable at the moment of the shooting, but in which the officer or other officers’ escalation helped create the threat in the first place.
If we really want to reduce fatal police shootings instead of merely adjudicating them, we need to train officers in tactics that subdue threats, reward those who resolve threats without violence, and discourage actions that create unnecessary confrontation, violence, and escalation. And when these shootings are investigated — be it by the DOJ, internal affairs departments, local prosecutors or an outside agencies — it’s time to start looking beyond whether or not the shooting was justified under the black letter of the law. It’s time to start asking whether the shooting was preventable — and if it was, whether the failure to prevent it was due to poor training, bad policies, or police officers acting in contravention of policies or training.
Was it legal? is the question we ask when deciding whether or not to prosecute. Was it preventable? is the question we need to ask to save lives.