FROM ARTHUR’S POLICY DESK Why police error is not illegal
It is the position of the NRA that “the only answer to a bad guy with a gun is a good guy with a gun.” On Nov. 22, 2018, E.J. Bradford, while in a shopping mall in Alabama and attempting to respond to an active shooter, was shot in the back of the head by the police.
On Feb. 5, 2019, the Alabama Attorney General issued a report that the police officer who shot Bradford would not face criminal charges because the officer acted reasonably under the circumstances.
The killing of Bradford shines a light on two issues. The first is the fallacy of the NRA policy of arming citizens because when a “good guy” with a gun attempts to stop a “bad guy” the “good guy” can be shot by the police. The second, as the Attorney General made clear in his report, the law does not hold police culpable for being wrong in killing an innocent person, the law only requires that the officer act reasonably in taking the action that results in the killing.
Let me explain the second issue. All police use of force cases are judged by the requirements of the fourth amendment, which protects people from unreasonable seizure by the police. A seizure occurs, according to the Supreme Court, when a reasonable person believes they can’t leave. A seizure involves the entire continuum of force, from being told to stop to being shot by the police.
The word unreasonable is a context word. It looks at the specific situation and determines if the action taken was reasonable, not whether it was in fact correct. Further, the Supreme Court has made clear that the determination of reasonable action is not made with hindsight. Police factual error does not matter.
The legal question in police seizure cases is whether a reasonable officer in the same situation, knowing what the officer in question knew at the time, would have acted in the same way. In other words, under the totality of the circumstances, would a reasonable officer do what the officer in question did. Nothing else matters in the analysis.
Bradford was in the mall when he heard gun shots. The Attorney General’s report stated that Bradford unholstered his gun, cocked a bullet into the chamber, and ran towards the person who was shot and the person who was giving aid. The report states that Bradford might have been focusing on the shooter. At the same moment, four police officers who were assigned to the mall also heard the gun shots and also ran towards the situation.
Both the police and Bradford were running toward an “active shooter” situation. As the Attorney General correctly stated in his report, post-Columbine police practice in such cases is to “rush straight to the gunfire and end the threat.” Both Bradford and the officers were doing so, but Bradford was in front of the police and the police were running behind him.
The report states, and the Attorney General also released video of the incident, that when the police came upon the scene, they saw Bradford with a gun running towards the person shot and the person giving aid. Bradford’s back was towards the police. The police did not know who the shooter was but at the moment they entered the situation they saw an armed Black man running towards two unarmed people. The police shot him.
The Attorney General concluded that a reasonable police officer, with the information the officers had at the time, would have concluded that Bradford was the active shooter, who at the moment of being shot was about to shoot two unarmed people. The fact that the officer was in fact wrong is of no consequence. The fourth amendment only requires reasonable action, not correct action viewed in hindsight.
As I explain to my students, as great as the fourth amendment is, it’s the weakest of the four criminal procedure amendments because it’s case-bycase situational, not absolute. The fifth, sixth, and eighth amendments are not relative in application. The fourth is completely relative. The fourth only protects from police unreasonable action, not factually incorrect action. Because the police were reasonable in their action, although factually wrong, the Attorney General was correct that the police, in killing Bradford, were not criminally culpable.