Legally Speaking: Phoenix killing mirrors those by police in Ferguson, New York

Tuesday evening, a Phoenix police officer fatally shot an unarmed 34-year-old man while responding to a resident’s call of criminal activity.

Some would say this, in and of itself, is not newsworthy, but when you add some facts the story becomes relevant and timely.

Consider the societal environment today and add these facts:

1) The officer is white, the deceased is black.

2) The deceased was unarmed.

3) The deceased ran from the officer and disobeyed an order.

A grand jury failed to indict officer Darren Wilson (who shot and killed a black teenager) in Ferguson, Missouri; a grand jury in New York City failed to indict officer Daniel Pantaleo (who killed an unarmed black man with a chokehold while on duty); and a grand jury just today indicted South Carolina police chief Richard Combs (who shot and killed an unarmed black man).

Police across the country, including those here in Arizona, are being scrutinized and coming under attack for their actions when dealing with minorities, namely black men.

This makes sense considering the four cases mentioned above.

The public is concerned and is voicing its concern. When the public sits up and takes notice it is often the catalyst for change and it sounds like a big change is coming.

What will that change be?

Perhaps it will be changes in police department policies and/or changes in the law, but before that there has to be a change in the way society thinks and its belief system.

I can’t explain why society thinks the way it does and how to fix our belief system, that is better left to the sociologists, psychologists, behaviorists and other “ists” out there.

However, I can explain the laws here in Arizona when it comes to situations like these.

What is the law here in Arizona? When can an Arizona police officer use deadly force in the line of duty? What are the crimes an officer can be charged with? How is a jury instructed when trying to decide whether the officer was wrong, and thus, criminally liable?

I will address the laws in light of the Phoenix situation mentioned at the beginning.

The basic statement found in Arizona Revised Statutes 13-402, “conduct which would otherwise constitute an offense is justifiable when it is required or authorized by law.”

In other words, if a killing could be considered a murder then it could be justified if it was required or allowed by law.

13-410(C) states that

(C) The use of deadly force by a peace officer against another is justified…only when the peace officer reasonably believes that it is necessary:

1. To defend himself…from what the peace officer reasonably believes to be the use or imminent use of deadly physical force.

2. To effect an arrest or prevent the escape from custody of a person whom the peace officer reasonably believes:

(a) Has committed, attempted to commit, is committing or is attempting to commit a felony involving the use or a threatened use of a deadly weapon.

(b) Is attempting to escape by use of a deadly weapon …

In other words, a police officer is justified in using deadly physical force when they reasonably believe its necessary to protect themselves from the defendant’s use, or imminent use, of deadly physical force; to make an arrest or prevent the escape of someone who the officer reasonably thinks has committed a felony involving the use of a deadly weapon or who is attempting to escape using a deadly weapon.

Looking at the words, you will notice the word “reasonably” appears several times. That is seemingly what the police officer is judged by.

Were their actions “reasonable?”

In evaluating reasonableness you have to look at the situation. In this case, based on the facts above, was it reasonable for the officer to shoot the deceased who ignored the officer’s order, ran from the officer, did not put his hands up, reached for something in his pocket and struggled with the officer?

Granted, these facts are taken from the Phoenix Police Department media release and we don’t know what other witnesses saw or heard.

You might then ask, “reasonable to who?”

That’s where there is a conflict or question in the law.

Is the officer judged by an objective standard or a subjective standard? Can anyone else really put themselves in the officer’s shoes? Whether they can or not, no one would doubt it would be a difficult decision to make for anyone.

There are cases that interpret the laws explained above and there are jury instructions to help.

Bottom line, the law states there are times a police officer is justified in using deadly physical force and that those times are judged by a reasonableness standard.

Officers don’t have the latitude to pull out their weapon and shoot to kill whenever they want, there must be a legitimate reason. If there is not a legitimate reason then the officer should be held accountable, criminally.

Our society is in an uproar now because there are a number who believe cops are jumping the gun so to speak. That their bias and racial hatred influences their reasonableness in a negative way. That they are more prone to shoot a man because he is black.

How do we as a society deal with this?

Of course, there is education, punishment and refinement. Educate officers and others in recognizing, dealing and extinguishing bias and racial hatred. Punish those who act unreasonably and without justification. Refine department policies and procedures to embrace not only training and acting defensively, but also in deescalating situations.

Yes, I know those aspects are already in place, but, I have to ask, are they working?