For the past two weeks, newspapers in New York and around the country have been covering the latest shooting of unarmed civilians by the NYPD. One of the three civilians, Sean Bell, died in the early morning hours of what was supposed to be his wedding day. Shakespeare could not have imagined a more compelling tragedy.
The public reaction was swift and fierce. Local politicians issued statements, the family and the city mourned, and attorneys began their media campaigns. Commentators also threw in their two cents. What they all sought to understand was how five police officers could fire fifty bullets at three unarmed civilians, how last year police fired forty-three bullets at an armed man and how in 1999, the police fired forty-one bullets at unarmed Amadou Diallo.
Interestingly, many of the theories offered centered on the legal doctrine of excuse. A New York Times article suggested the phenomenon of contagious shooting where officers shoot mostly because their fellow officer is shooting. Police experts likened contagious shooting to the spread of germs, to reflex, to instinct and to automated Pavlovian response. Yet another commentator described how the rush of adrenalin impairs the judgment of officers. These purposeful portrayals invoke the powerful concept of involuntariness that lies at the heart of excuse doctrine. Don’t blame the actor; instead, blame an uncontrollable disability that they do not choose to have. This disability is what causes the actor to commit the harmful offense. This overwhelming and immediate desire to explain what happened to Sean Bell in terms of excuse is understandable. It allows the alleviation of guilt without the denigration of the loss of a human life.
But the reality is more complex and nuanced than these excuse-based theories. There are important elements of rationality and reason being ignored in these shootings. When officers assess whether a situation rises to a threatening level of danger, they consider numerous factors. Certainly, amongst these factors are the beliefs and judgments being formed by their fellow officers at the scene. Indeed, the nature of the undercover operation in place at the time of the shooting relies on the sharing of beliefs and perceptions among fellow officers. Thus, when an officer shoots because he has just observed his fellow officer shooting, it is not instinct or disease taking over; it is arguably reasonable and rational behavior.
In other words, the police officers could be presenting a very different defense: They chose to shoot because at the time they had good reasons to believe they needed to do so. Among these reasons was the fact that their fellow officers were shooting, presumable because they perceived a lethal threat. Ultimately, they all turned out to be wrong. Sean Bell and his two friends were unarmed. However, the criminal law allows for mistaken justification defenses. Such defenses answer the call for more nuanced and complex analysis of these difficult shootings. And yet, so many feel driven to claim excuse based on instinct, on reflect, and on automatic behavior. Why is that? Somehow, it is regarded as unpersuasive and unappealing to ignore 20/20 hindsight and to plead a case for reasonable, rational behavior.
-Elaine Chiu
Posted by Elaine Chiu on December 16, 2006 at 08:19 PM
Comments
An additional factor is that often an officer will hear the shots and think, wrongly but perhaps not unreasonably, that some are coming from the suspect and so ‘return’ fire as well. It’s important to remember that these events take very, very little time. It’s not hard, in such a case, not to realized that all of the shots are coming from one side. (I don’t know if this was the case in the shooting in Queens but I believe it was so in the Diallo case. This isn’t to excuess the officers- I thought they clearly should have gone to jail in the Diallo case. This one, so far, seems a bit less clear, but such factors should be considered.)
Posted by: Matt | Dec 16, 2006 11:26:15 PM