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Were They A Threat? Police Shootings Reignite Legal Debate

Scott Olson
Getty Images
People gather in front of the Kenosha County Court House to protest against Sunday's police shooting of Jacob Blake on Monday in Kenosha, Wis.

In the span of 48 hours, two Black men in U.S. cities hundreds of miles apart were shot by police in episodes that set off a national conversation about the need for officers to open fire on people walking away from them.

The Jacob Blake shooting in Kenosha, Wis., and the killing of Trayford Pellerin in Lafayette, La., two days earlier have thrust into the spotlight a thorny and long-running legal issue that has on several occasions gone all the way to the U.S. Supreme Court. And the Blake shooting has raised a host of other questions, including why the officer felt the need to shoot him seven times in the back at close range, and the prudence of police opening fire with children nearby.

Wisconsin authorities are investigating those questions as they weigh charges against the officer in a case that has reignited national protests over racial injustice. The shootings come less than three months after almost daily clashes between police and protesters in response to the death of George Floyd after a Minnesota officer knelt on his neck for several minutes.

>>Wisconsin AG Pushes Back On Criticism of Investigation Into Jacob Blake Shooting

Laws governing the use of deadly force differ from state to state, and past shootings of people who were fleeing from officers have played out differently across the country.

An Atlanta officer was charged with felony murder in June in the fatal shooting of Rayshard Brooks, who authorities said had taken an officer's stun gun and was 18 feet away when the officer shot him from behind.

Prosecutors in South Carolina agreed to drop murder charges against former North Charleston police officer Michael Slager as part of a plea deal in the 2015 fatal shooting of unarmed Walter Scott. Slager, who shot the fleeing man five times in the back, is serving a 20-year federal sentence after pleading guilty to a civil rights violation.

And in Pennsylvania, a prosecutor in Pittsburgh's Allegheny County said shooting a suspect in the back was unacceptable when he charged a former officer after he fatally shot 17-year-old Antwon Rose as he fled a 2018 traffic stop. But a jury declined to convict the officer, who said he thought he saw a gun.

“Even if it appears to be horrific, it doesn’t mean that there is a law that they have violated,” said Raleigh Blasdell, a criminologist and professor at North Central College in Illinois.

Police said 31-year-old Pellerin, who was killed, was carrying a knife Friday when he tried to enter a convenience store after causing a disturbance at another store earlier. Video shows police following Pellerin and shots are heard as he opens the store's door. Authorities have not identified the officer or officers who shot Pellerin or said where or how many times he was shot.

Blake, 29, was shot as he leaned into his SUV, where three of his children were seated. The Kenosha police union said Friday that officers were dispatched there because of a complaint that Blake was attempting to steal the caller’s keys and vehicle. A union attorney said in the moments leading up to the shooting, officers saw Blake holding a knife and made multiple requests for him to drop it but he was uncooperative. Blake also “forcefully fought with the officers, including putting one of the officers in a headlock,” the union said. After police tried twice unsuccessfully to use a stun gun on Blake, officer Rusten Sheskey shot him at close range while holding onto his shirt, authorities said.

Blake survived but is paralyzed. Federal authorities said they will conduct a civil rights investigation into the shooting.

Wisconsin law provides officers with a defense to criminal charges if a shooting is “a reasonable accomplishment of a lawful arrest.” The state's vague law essentially allows officers to use any and all force to accomplish a lawful arrest, Blasdell said.

Furthermore, juries often steer away from second-guessing an officer’s split-second decisions even when other officers on scene testify that they didn’t shoot because they didn’t see a threat, said Philip Stinson, a former police officer and criminologist at Bowling Green State University.

Yet, the tactics used by the officer who shot Blake are highly questionable, said Seth Stoughton, another former officer.

If police believe someone has a knife, they're supposed to keep their distance, not get closer, said Stoughton, now a law professor at the University of South Carolina. He also questioned why the officer followed Blake around the car with his gun drawn instead of simply grabbing him to stop him.

But David Klinger, who as a rookie Los Angeles police officer in 1981 fatally shot a man who pulled a butcher knife on another officer, urged the public not to rush to judgment in either case.

“If it turns out these officers in Louisiana, these officers in Wisconsin, did something wrong then they need to be held to account,” said Klinger, now a criminologist at the University of Missouri-St. Louis. “But we have a system, we have a process; we need to let that process work itself out.”

It’s difficult to say whether a suspect being shot in the back leads more often to criminal charges or convictions because police often don’t release those details, and recent cases have come to light only through videos, Stinson said.

The legal thinking surrounding such cases has evolved over the years, but even as policing reforms are considered across the country, few have been focused on restricting when officers can shoot someone fleeing police.

In the 1970s, officers were often authorized under state laws to shoot someone in the back to keep them from evading arrest even if that suspect didn’t pose a threat. But a 1985 Supreme Court decision in a Tennessee case said officers could use lethal force to stop a fleeing felon only if they have reasonable grounds to think the suspect is a danger to police or bystanders.

Years later, the high court said an officer’s fear in the heat of the moment, not just the actual threat, was relevant in deciding whether a shooting was legally justified. That could mean an officer could be found justified in a shooting if he or she truly believed the suspect had a gun but turned out to be wrong.

Regardless of whether they result in criminal charges, experts said both cases show an urgent need to better train officers so they don't resort so quickly to their gun.

“When I was a police officer and someone walked away from you and it looked like they were going to get something, you tackle them ... It wouldn’t have crossed my mind to bear down on them and shoot,” Stinson said.

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