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'Reasonableness' Standard For Police Is Under Pressure After High-Profile Shootings


When police shoot an unarmed suspect, it's often ruled justified as long as the officer's fear of grave harm in that moment is reasonable. And that legal principle is increasingly coming under pressure. NPR's Martin Kaste has more.

MARTIN KASTE, BYLINE: There's a phrase in policing - lawful but awful. It describes those shootings that are technically justified, but still look terrible - for instance, a nighttime foot chase. The suspect pulls out a cell phone, and officers mistake it for something else.


UNIDENTIFIED POLICE OFFICER: Show me your hands! Gun, gun, gun!

KASTE: That was the moment last year when police shot and killed Stephon Clark in Sacramento. Earlier this month, the district attorney there finally announced that she would not charge the two officers because they reasonably believed that it was a gun. That's been the legal standard for a generation. But after the announcement, Sacramento Mayor Darrell Steinberg questioned the standard.


DARRELL STEINBERG: If an officer-involved shooting is deemed reasonable after the fact, that it is then justifiable - I believe that that standard needs to be changed.

KASTE: And in fact, California may soon do just that. Legislators are considering whether to require police to use tactics such as de-escalation before they use deadly force when feasible. The bill is welcomed by Black Lives Matter protesters and SeQuette Clark, Stephon's mother, who spoke to NPR's Michel Martin after the DA's announcement not to charge.


SEQUETTE CLARK: Why hasn't that already been the law? Why, after hundreds of years, does the law have to be amended to not use deadly force on a young kid?

KASTE: But when police hear about changing the standard, alarm bells go off. They've come to count on the principle of objective reasonableness as a kind of shield against armchair quarterbacks, as they often put it. Adam Plantinga is a San Francisco police sergeant who writes about the practical realities of law enforcement.

ADAM PLANTINGA: Things move unbelievably fast. You react to what's in front of you. And sometimes that works out, and sometimes it has a terrible outcome.

KASTE: That's why cops like the reasonableness standard so much. Many of them can even quote from the Supreme Court ruling that it's based on, 1989's Graham v. Connor. But they may be assuming that it shields them more than it really does. David Harris is a law professor at the University of Pittsburgh, where he studied police use of force questions for years.

DAVID HARRIS: It is highly protective of police officers, and that is one of the reasons that they like it. But the rights truly belong to the citizen.

KASTE: Harris says the standard is actually a floor for the rules that govern the use of force, and it's a floor that the states could raise.

HARRIS: If legislature in California decides it is going to give its citizens greater protection in the sense that it is going to order its police officers to effectively wait and hesitate to use force in a greater number of cases than, say, Graham vs. Connor would require, that is their option to do that.

DAVID E MASTAGNI: I'll be the first to challenge it.

KASTE: David E. Mastagni is a labor lawyer who represents police officers in California. He says this kind of a change would violate cops' right to reasonable self-defense by making it easier to prosecute them for their split-second decisions.

MASTAGNI: You'll just have a parade of experts come in. And you'll have ex-cops that, for money, will come in and say, well, OK. That guy was advancing on you with a knife, but you could've retreated and tried to find cover.

KASTE: It's important to keep in mind here that this is about changing the standards for prosecuting cops. A growing number of police departments already require de-escalation tactics as a matter of policy. And for most cops, department policy is a more present concern than the threat to prosecution. In San Francisco, Sergeant Plantinga says people should also keep in mind that most officers never fire their guns at anybody during their whole careers, and those who do are probably not going to pause to consider the state's legal definition of reasonableness.

PLANTINGA: If you firmly believe that someone is about to kill you, you're going to do what you have to do to protect yourself and your partner and the public. That's just, I think, basic human physiology.

KASTE: Martin Kaste, NPR News. Transcript provided by NPR, Copyright NPR.

Martin Kaste is a correspondent on NPR's National Desk. He covers law enforcement and privacy. He has been focused on police and use of force since before the 2014 protests in Ferguson, and that coverage led to the creation of NPR's Criminal Justice Collaborative.