When Cops Can Legally Shoot People in America

Every time the police are filmed killing a black man in America, there's an almost routine explosion of public outrage. People get angry at the specific horrors of the incident—it's sickening to watch Alton Sterling being restrained on the ground outside a convenience store in Baton Rouge, Louisiana, knowing the cops are about to shoot him. We get angry, too, at the way these events seem to reflect the stubborn persistence of racism in society. Maybe worst of all, though, is the anger that stems from knowing cops are very rarely indicted for alleged civil rights violations, and even more rarely convicted—much less sent to prison.

There are certainly circumstances when the use of force by cops—even deadly force—is uncontroversial. Few tend to complain when an active shooter is shot, and thus prevented from carrying out additional slaughter, by responding officers. But even shootings that result in national outrage are often found to be officially "justified." The Cleveland cop who shot Tamir Rice, for instance, never faced charges, even though the family of the 12-year-old was awarded a $6 million settlement by the city. (The feds are reportedly still investigating whether the child's civil rights were violated, but such probes rarely result in prosecution.)

Curious about the legalities of police shootings, and the rules that let most cops walk free after killing suspects, I called up Paul H. Robinson, a professor at the University of Pennsylvania Law School who's an expert in criminal law, as well as a former federal prosecutor. We talked about where cops draw the power to kill, the restrictions the average officer faces on that lethal power, and how to draw a line between these (sometimes abstract) legal theories and recent killings of black men by cops on camera.

VICE: What laws give cops the ability to use force, up to and including deadly force?
Paul H. Robinson: In all of these cases, there are really two different defenses at work. One is what's called the "law enforcement authority," that is, police officers are given a special right to use force that might otherwise be assault in order to make arrests. But the right to self-defense and the right to defense of others apply as well.

So for example, if a police officer shot somebody in order to arrest them for a misdemeanor, they're not authorized to use lethal force [in that case]. But if the person who they're arresting resists and threatens them with serious bodily injury, then they're not limited to the force that's authorized by the law enforcement authority—they then have the same right to self-defense that any citizen has.

In other words, if you're a cop and you move to cuff me because you saw me shoplifting and I pull out a knife, you can shoot me. And police officers don't have any special rights in that situation when they're directly under attack?
When police officers are under direct attack, they have the same right to use force as any citizen would. Now, what force can they use? That's when necessity and proportionality comes in.

Cops can only use force if it's necessary, and they have to use the least amount of force that is necessary. So if you can subdue somebody by grabbing them and throwing them to the ground, then you can't shoot and kill them. If you have a choice, you have to select the least harmful choice. This necessity requirement also has a timing component: You can't anticipate that someone's going to attack you. You have to wait until they do, and it becomes necessary for you in time to defend yourself.

The proportionality requirement says, even if this force is necessary to make an arrest or defend yourself, you still can't use that force if it exceeds a certain amount. This is where the use of lethal force has some special rules attached to it. You can only defend yourself with lethal force if you're threatened with serious bodily injury. If someone is threatening to push you to the ground, that's not serious bodily injury, so even if the only way to keep yourself from being pushed to the ground is to shoot the person, you can't. There are a number of jurisdictions where even if you're threatened with serious bodily injury, you can't use lethal force if you could just walk away. If you're in public and you can walk away safely, even if this creep is threatening you with serious bodily injury, your obligation is to walk away before you shoot him. This is the "stand-your-ground" debate, where [the laws in some states] say, "No, it's his fault, and if he's threatening you, you don't have to retreat." Other states say, "No, let's not have the confrontation." (This rule about retreating does not apply to the cops.)

The US Supreme Court, in the landmark Garner case [in 1985], said police officers can't use deadly force in making arrests unless the person they're arresting has committed a felony and there's some danger that if they're not arrested they will [seriously] hurt somebody. Before then, if you ran from police, the police could shoot you.

When a suspect is shot during an encounter, a lot of times the cop says something like, "I saw him reaching into his pocket, and I thought he had a gun and I fired." Then it turns out that it wasn't a gun. How do courts handle those situations?
The way the law deals with this is, it goes back and tries to figure out what the circumstances were at the time and whether [the officer's] judgement was a reasonable one or not. Is it the kind of mistake that a reasonable person in your position could have made? Or is it the kind of situation where it would have been obvious to the reasonable person that something wasn't a threat?

Consider the cases where somebody has made a mistake and they honestly believe that their life was immediately threatened and they're wrong and their judgement wasn't completely reasonable. Those cases the jurisdictions are split on. Some jurisdictions have the all-or-nothing rule, where if you didn't make a reasonable mistake, you get no defense at all, it's handled as if you shot someone just to shoot someone. Even if you're acting in complete honesty and good faith, if your mistake is unreasonable, you get treated as a murderer.

The Model Penal Code, which is the basis for the codification of most of the criminal laws in the United States, says, "Well, no, the person who makes an honest but unreasonable mistake is not as blameworthy as a murderer who goes out and intentionally shoots somebody." Under the Model Penal Code rule, if you make a reckless mistake that a reasonable person would have not made, you're not liable for murder, but you are liable for manslaughter.

Why do you think prosecutors so rarely charge cops in cases where they've killed someone?
That depends on the case and the prosecutor—there could be all kind of motivations. On one hand, most jurors probably are aware that police officers are out there in sometimes dangerous circumstances and have some sort of empathy for their situation. However, it's probably true that over the past [few] years, the average person's assessment of whether cops make mistakes because they're doing the best they can or because they're just not acting carefully enough may well have shifted. It may depend on the race or politics of the person you're talking to.

There are cases where a prosecutor knows that he's not going to get a conviction, but there is this public demand that the case be publicly investigated and examined and reported, so it needs to at least go to trial. And if you actually look at the end results, when you get down to it, there are very few cases that actually get convictions. There are very few cases where, with complete hindsight, [a court decides], "Oh, no, that was a bad cop doing bad things."

How helpful are videos in building cases against cops for police shootings?
I think it would be a mistake to think the video would tell you everything you need to know. If the cop was wrong, there's a lot more that goes into that judgement than what you can see on the video. What is the neighborhood like, what is the experience that those cops have had in the last six months on the street? And there's also the issue of what the video is and is not capturing. It won't show, for instance, the fact that this guy just robbed a convenience store four blocks away and pistol-whipped the manager.

I think the videos are good to have. But it would be ridiculous to think they give us all the answers. It's hard to really piece together what the full situation was so we can make a good reliable judgement about whether the cop's mistake is a reasonable one or not.

This article has been edited and condensed for clarity.

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