Rodney Jones
asked
Alan E. Johnson:
Alan As a follow-up to our recent thread on UK/EU politics, may I ask you a topical question regarding US law. In common with all right-thinking people in the UK, I sympathise with all US citizens over the tragic racial tensions and murders of the past few days. However, I was also struck by the Police department's use of a robotic bomb to 'blow up' the suspect. Is this lawful? I don't think it would be in the UK.
Alan E. Johnson
Rodney,
I had never heard of a robotic bomb before this incident, and I am fairly certain that no court has adjudicated the question. However, it would fall under the Fourth Amendment to the US Constitution (as applied to state and local governments by the Fourteenth Amendment Due Process Clause), which reads, in pertinent part, as follows: "The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated . . . ." This question involves the general issue of "excessive force." There is a substantial body of US Supreme Court case law on when it is appropriate for the police to use lethal force, and I have read that case law (though not recently). I am confident that the use of lethal force was justified in this case. The suspect had already killed several people and was obviously not going to surrender peacefully. He manifested a clear danger to others, especially police officers. Under these circumstances, the police would have been justified to shoot him dead by the use of ordinary handguns or rifles. I don't see that the use of a robotic bomb would make any difference in the analysis. Under the circumstances, where the shooter held no hostages and no one else appeared to be in the immediate vicinity, innocent persons were not threatened with injury by use of the robotic bomb. I think that the police did the right thing. People are commenting on the difference between police and military weapons. I don't see that this makes any difference in the legal analysis, especially when the shooter, as here, was evidently using a military-style assault weapon. The solution to this type of problem is to abolish the right of ordinary people to have military weapons, not to deprive the police of the use of them when necessary. In Britain, people generally are not allowed to possess dangerous firearms. As you are aware, it is much different in the US.
With regard to the legal question whether the police improperly used lethal force in the incidents that occurred earlier in the week, based on what we know so far (mainly from the videos), it would appear that their use of lethal force was improper. If so, there will be (or should be) legal consequences to the police officers involved, including both criminal prosecution and civil litigation for violations of civil rights. Of course, the officers will be afforded due process in judicial proceedings. In criminal cases the prosecutor has to prove guilt beyond a reasonable doubt (a difficult standard that may be one of the reasons so many criminal prosecutions of police officers are unsuccessful). The burden of proof for a plaintiff in a civil suit for excessive force is preponderance of the evidence. Before my retirement as an attorney, I sometimes was involved in the defense of police officers in civil cases alleging excessive force. Since Fourth Amendment law was not my principal litigation area, I usually participated in such cases only as a part of a defense team and only when the pleadings also alleged violations of the Fourteenth Amendment Equal Protection Clause. This was, it must be emphasized, only my professional responsibility in connection with the American "adversary system" of justice. I certainly do not sympathize with any use of excessive force, whether it involves a racial component or not.
Alan
Rodney,
I had never heard of a robotic bomb before this incident, and I am fairly certain that no court has adjudicated the question. However, it would fall under the Fourth Amendment to the US Constitution (as applied to state and local governments by the Fourteenth Amendment Due Process Clause), which reads, in pertinent part, as follows: "The right of the people to be secure in their persons . . . against unreasonable . . . seizures, shall not be violated . . . ." This question involves the general issue of "excessive force." There is a substantial body of US Supreme Court case law on when it is appropriate for the police to use lethal force, and I have read that case law (though not recently). I am confident that the use of lethal force was justified in this case. The suspect had already killed several people and was obviously not going to surrender peacefully. He manifested a clear danger to others, especially police officers. Under these circumstances, the police would have been justified to shoot him dead by the use of ordinary handguns or rifles. I don't see that the use of a robotic bomb would make any difference in the analysis. Under the circumstances, where the shooter held no hostages and no one else appeared to be in the immediate vicinity, innocent persons were not threatened with injury by use of the robotic bomb. I think that the police did the right thing. People are commenting on the difference between police and military weapons. I don't see that this makes any difference in the legal analysis, especially when the shooter, as here, was evidently using a military-style assault weapon. The solution to this type of problem is to abolish the right of ordinary people to have military weapons, not to deprive the police of the use of them when necessary. In Britain, people generally are not allowed to possess dangerous firearms. As you are aware, it is much different in the US.
With regard to the legal question whether the police improperly used lethal force in the incidents that occurred earlier in the week, based on what we know so far (mainly from the videos), it would appear that their use of lethal force was improper. If so, there will be (or should be) legal consequences to the police officers involved, including both criminal prosecution and civil litigation for violations of civil rights. Of course, the officers will be afforded due process in judicial proceedings. In criminal cases the prosecutor has to prove guilt beyond a reasonable doubt (a difficult standard that may be one of the reasons so many criminal prosecutions of police officers are unsuccessful). The burden of proof for a plaintiff in a civil suit for excessive force is preponderance of the evidence. Before my retirement as an attorney, I sometimes was involved in the defense of police officers in civil cases alleging excessive force. Since Fourth Amendment law was not my principal litigation area, I usually participated in such cases only as a part of a defense team and only when the pleadings also alleged violations of the Fourteenth Amendment Equal Protection Clause. This was, it must be emphasized, only my professional responsibility in connection with the American "adversary system" of justice. I certainly do not sympathize with any use of excessive force, whether it involves a racial component or not.
Alan
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Dec 19, 2020 05:25PM · flag
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