{"id":357594,"date":"2018-04-20T07:58:13","date_gmt":"2018-04-20T06:58:13","guid":{"rendered":"http:\/\/rinf.com\/alt-news\/newswire\/we-need-to-change-the-rules-for-when-police-can-shoot\/"},"modified":"2018-04-20T07:58:13","modified_gmt":"2018-04-20T06:58:13","slug":"we-need-to-change-the-rules-for-when-police-can-shoot","status":"publish","type":"post","link":"http:\/\/rinf.com\/alt-news\/newswire\/we-need-to-change-the-rules-for-when-police-can-shoot\/","title":{"rendered":"\u2018We Need to Change the Rules for When Police Can Shoot\u2019"},"content":{"rendered":"<p><em>Janine Jackson interviewed Peter Bibring about excessive force law for the <a href=\"https:\/\/fair.org\/home\/peter-bibring-on-excessive-force-law-peggy-case-on-right-to-water\/\">April 13, 2018, episode<\/a> of <strong>CounterSpin<\/strong>. This is a lightly edited transcript.<\/em><\/p>\n<div id=\"wrapperMI_0\" class=\"wrap-mjp  \" style=\"padding:5px 0px 40px 0px;margin:0px;width:100%\">\n<div class=\"Eabove-mjp\" id=\"Eabove-mjp_0\"><\/div>\n<div class=\"subwrap-MI\">\n<div class=\"jp-innerwrap\">\n<div class=\"innerx\"><\/div>\n<div class=\"innerleft\"><\/div>\n<div class=\"innerright\"><\/div>\n<div class=\"innertab\"><\/div>\n<div class=\"interface-mjp verdana-mjp\" style=\"height:71px\" id=\"interfaceMI_0\">\n<div class=\"MI-image Himg right-mjp\" id=\"MI_image_0\" style=\"width:auto;height:71px;overflow:hidden\"><\/div>\n<div id=\"T_mp3j_0\" class=\"player-track-title left-mjp norm-mjp plain-mjp childNorm-mjp childPlain-mjp\"><\/div>\n<div class=\"bars_holder\">\n<div class=\"loadMI_mp3j\" id=\"load_mp3j_0\"><\/div>\n<div class=\"poscolMI_mp3j\" id=\"poscol_mp3j_0\"><\/div>\n<div class=\"posbarMI_mp3j\" id=\"posbar_mp3j_0\"><\/div>\n<\/p><\/div>\n<div id=\"P-Time-MI_0\" class=\"jp-play-time\"><\/div>\n<div id=\"T-Time-MI_0\" class=\"jp-total-time\"><\/div>\n<div id=\"statusMI_0\" class=\"statusMI\"><\/div>\n<div class=\"transport-MI\">\n<div class=\"play-mjp\" id=\"playpause_mp3j_0\">Play<\/div>\n<div class=\"stop-mjp\" id=\"stop_mp3j_0\">Stop<\/div>\n<\/div>\n<div class=\"buttons-wrap-mjp\" id=\"buttons-wrap-mjp_0\">\n<div class=\"mp3j-popout-MI\" id=\"lpp_mp3j_0\">pop out<\/div>\n<div id=\"download_mp3j_0\" class=\"dloadmp3-MI\"><\/div>\n<\/p><\/div>\n<\/p><\/div>\n<div class=\"mjp-volwrap\">\n<div class=\"MIsliderVolume\" id=\"vol_mp3j_0\"><\/div>\n<div class=\"innerExt1\" id=\"innerExt1_0\"><\/div>\n<div class=\"innerExt2\" id=\"innerExt2_0\"><\/div>\n<\/p><\/div>\n<\/p><\/div>\n<div class=\"Ebetween-mjp\" id=\"Ebetween-mjp_0\"><\/div>\n<div class=\"listwrap_mp3j\" id=\"L_mp3j_0\">\n<div class=\"wrapper-mjp\">\n<div class=\"playlist-colour\"><\/div>\n<div class=\"wrapper-mjp\">\n<ul class=\"ul-mjp darken1-mjp verdana-mjp med-mjp childNorm-mjp childPlain-mjp left-mjp\" id=\"UL_mp3j_0\">\n<li><\/li>\n<\/ul>\n<\/div>\n<\/div>\n<\/div><\/div>\n<div id=\"mp3j_finfo_0\" class=\"mp3j-finfo\">\n<div class=\"mp3j-finfo-sleeve\">\n<div id=\"mp3j_finfo_gif_0\" class=\"mp3j-finfo-gif\"><\/div>\n<div id=\"mp3j_finfo_txt_0\" class=\"mp3j-finfo-txt\"><\/div>\n<div class=\"mp3j-finfo-close\" id=\"mp3j_finfo_close_0\">X<\/div>\n<\/div>\n<\/div>\n<div id=\"mp3j_dlf_0\" class=\"mp3j-dlframe\"><\/div>\n<div class=\"mp3j-nosolution\" id=\"mp3j_nosolution_0\"><\/div>\n<div class=\"Ebelow-mjp\" id=\"Ebelow-mjp_0\"><\/div>\n<\/p><\/div>\n<p>MP3jPLAYLISTS.MI_0 = [<br \/>\n\t{ name: &#8220;1. CounterSpin Peter Bibring Interview &#8220;, formats: [&#8220;mp3&#8221;], mp3: &#8220;aHR0cDovL3d3dy5mYWlyLm9yZy9hdWRpby9jb3VudGVyc3Bpbi9Db3VudGVyU3BpbjE4MDQxM0JpYnJpbmcubXAz&#8221;, counterpart:&#8221;&#8221;, artist: &#8220;&#8221;, image: &#8220;true&#8221;, imgurl: &#8220;&#8221; }<br \/>\n];<\/p>\n<p>MP3jPLAYERS[0] = { list:MP3jPLAYLISTS.MI_0, tr:0, type:&#8217;MI&#8217;, lstate:true, loop:false, play_txt:&#8217;Play&#8217;, pause_txt:&#8217;Pause&#8217;, pp_title:&#8217;FAIR&#8217;, autoplay:false, download:true, vol:80, height:71, cssclass:&#8217; &#8216;, popout_css:{ enabled:true, \t\t\tcolours: [&#8220;#fff&#8221;, &#8220;rgba(201,207,232,0.35)&#8221;, &#8220;rgb(241,241,241)&#8221;, &#8220;rgba(245,5,5,0.7)&#8221;, &#8220;rgba(92,201,255,0.8)&#8221;, &#8220;transparent&#8221;, &#8220;transparent&#8221;, &#8220;#525252&#8221;, &#8220;#525252&#8221;, &#8220;#768D99&#8221;, &#8220;#47ACDE&#8221;, &#8220;&#8221;, 600, 200 ],<br \/>\n\t\t\tcssInterface: { &#8220;color&#8221;: &#8220;#525252&#8221; },<br \/>\n\t\t\tcssTitle: { &#8220;left&#8221;: &#8220;16px&#8221;, &#8220;right&#8221;:&#8221;16px&#8221;, &#8220;top&#8221;:&#8221;8px&#8221; },<br \/>\n\t\t\tcssImage: { &#8220;overflow&#8221;: &#8220;hidden&#8221;, &#8220;width&#8221;:&#8221;auto&#8221;, &#8220;height&#8221;:&#8221;71px&#8221;  },<br \/>\n\t\t\tcssFontSize: { &#8220;title&#8221;: &#8220;16px&#8221;, &#8220;caption&#8221;: &#8220;11.2px&#8221;, &#8220;list&#8221;: &#8220;12px&#8221; },<br \/>\n\t\t\tclasses: { interface:&#8217; verdana-mjp&#8217;, title:&#8217; left-mjp norm-mjp plain-mjp childNorm-mjp childPlain-mjp&#8217;, image:&#8217; Himg right-mjp&#8217;, poscol:&#8221;, ul:&#8217; darken1-mjp verdana-mjp med-mjp childNorm-mjp childPlain-mjp left-mjp&#8217; }} };<\/p>\n<p><a href=\"http:\/\/www.fair.org\/audio\/counterspin\/CounterSpin180413Bibring.mp3\"><strong>MP3 Link<\/strong><\/a><\/p>\n<p><b>Janine Jackson:<\/b> Amy Hughes was not suspected of a crime. She was standing still, outside of her home in Tucson, holding a kitchen knife by her side. Three police officers, responding to a &#8220;check welfare&#8221; call about a woman hacking at a tree, arrived and saw Hughes\u2019 roommate, Sharon Chadwick, in the yard, and Hughes some six feet away from her. An officer yelled at Hughes to drop the knife. It\u2019s not clear whether she heard.<\/p>\n<p>Neither two of the three officers called to the scene, nor Chadwick herself, felt that Hughes was threatening. The third cop, Andrew Kisela, felt differently, and without warning shot Hughes four times through a chain-link fence. She survived, and did not go quietly,<a href=\"http:\/\/cdn.ca9.uscourts.gov\/datastore\/opinions\/2017\/06\/27\/14-15059.pdf\"> suing<\/a> for the violation of her Fourth Amendment rights. The Supreme Court, however, has just<a href=\"https:\/\/www.reuters.com\/article\/us-usa-court-police\/supreme-court-backs-arizona-policeman-accused-of-excessive-force-idUSKCN1H9170\"> ruled<\/a> that Kisela can\u2019t be sued, that he\u2019s covered by something called &#8220;<a href=\"https:\/\/www.washingtonpost.com\/news\/the-watch\/wp\/2015\/07\/14\/what-is-qualified-immunity-and-how-does-it-work\/?utm_term=.0e374a2312f3\">qualified immunity<\/a>.&#8221;<\/p>\n<p>Among myriad disheartening aspects in this case should be included the idea that many had, that there was a greater chance of making charges of excessive force by law enforcement stick in Amy Hughes\u2019 case, because she isn\u2019t black (although she has a history of mental illness\u2014and people with disabilities, along with LGBTQ people\u2014are also disproportionately likely to be shot by law enforcement).<\/p>\n<p>What can we possibly see as the lesson of the court\u2019s ruling in this case, and where do those who seek accountability\u2014not to speak of justice\u2014go from here?<a href=\"https:\/\/www.aclusocal.org\/en\/biographies\/peter-bibring\"> Peter Bibring<\/a> is the director of police practices at the<a href=\"https:\/\/www.aclusocal.org\/\"> ACLU of Southern California<\/a>. He joins us now by phone from Los Angeles. Welcome to <b>CounterSpin<\/b>, Peter Bibring.<\/p>\n<p><b>Peter Bibring:<\/b> Thank you for having me.<\/p>\n<p><b>JJ:<\/b> <i>Kisela v. Hughes<\/i> was a 7-2 ruling, not a close one. Sotomayor, with Ginsburg in the dissent, <a href=\"https:\/\/www.supremecourt.gov\/opinions\/17pdf\/17-467_bqm1.pdf\">said<\/a> the decision \u201ctells officers they can shoot first and think later.\u201d Is there another possible interpretation in what the Court has said here? What do you make of it?<\/p>\n<p><div id=\"attachment_8925984\" style=\"width: 360px\" class=\"wp-caption alignright\"><img loading=\"lazy\" decoding=\"async\" class=\"wp-image-8925984\" src=\"https:\/\/fair.org\/wp-content\/uploads\/2018\/04\/Peter-Bibring-Portrait.jpg\" alt=\"Peter Bibring\" width=\"350\" height=\"525\" \/><\/p>\n<p class=\"wp-caption-text\"><em>Peter Bibring: &#8220;The Constitution, as this Supreme Court has interpreted it, does not require officers to use deadly force [only] as a last resort.&#8221;<\/em><\/p>\n<\/div>\n<p><b>PB:<\/b> I think <i>Kisela<\/i> is disheartening for anyone who expects the Supreme Court to provide a meaningful check on police shootings and excessive force. First of all, there is the standard that the court uses in evaluating police force cases, under the Fourth Amendment. That standard does not require that an officer who shoots do so only if there are no other alternatives. There may be other alternatives that officers could have pursued, but the Constitution, as this Supreme Court has interpreted it, does not require officers to use deadly force as a last resort.<\/p>\n<p>The second issue in the Court\u2019s opinion is their interpretation of a doctrine called \u201cqualified immunity,\u201d which is a little bit technical, but basically a doctrine that says, courts shouldn\u2019t hold police officers liable, it shouldn\u2019t even allow officers to be sued, unless their conduct was clearly against the Constitution.<\/p>\n<p>And one of the things that the court said is that because there wasn\u2019t a case exactly like this one, the officer, even if this conduct was a violation of the Constitution, wouldn\u2019t have a reason to know. That is a very troubling holding here, because the Court didn\u2019t even let the case go forward, because it held that a reasonable officer could not even have known, would not have had fair warning, that the Constitution might prohibit an officer from shooting in this situation.<\/p>\n<p>And given the facts that you describe, it\u2019s really extraordinary. It\u2019s worth emphasizing: The officer shot Hughes through a chain-link fence. There was no question that the officers\u2019 lives were not in danger. The only question was whether Hughes posed an immediate danger to the person standing next to her, which was her roommate. And the testimony showed that they were chatting and that Hughes seemed contented and not agitated in any way.<\/p>\n<p>But the Court still said, it wasn\u2019t a matter of a jury having believed the officer\u2019s account over Hughes\u2019 account. The court held that on the facts, even if Hughes provided evidence of them, that the case could not go forward.<\/p>\n<p>The issue is that the federal Constitution and civil suits for damages, particularly under the construction that the Court has given in this case and in prior cases, just doesn\u2019t provide a meaningful check on police use of force. Part of that is the standard of \u201creasonableness,\u201d that doesn\u2019t require officers to use deadly force as a last resort. Part of that is the doctrine of qualified immunity, that excuses officers from even shootings that might be unconstitutional, if there isn\u2019t a prior case that clearly indicates that.<\/p>\n<p>But another reason is just that money damages are not a very good deterrent anyway. There\u2019s <a href=\"https:\/\/www.chapman.edu\/law\/_files\/events\/SchwartzPaperIndemnification.pdf\">research<\/a> that shows that individual officers effectively never pay money damages; it\u2019s always the government, the local police agency, that pays. And the way that budgets are set up, that is never an effective deterrent. Either that money comes out of the city\u2019s general fund or, even if it comes out of the department\u2019s fund, it\u2019s budgeted for, and departments that run over their budget simply ask the municipality for more money.<\/p>\n<p>So if we are going to stop unnecessary police shootings, we need to change the rules for when police can shoot, and that is why communities and advocates in California have<a href=\"http:\/\/www.sacbee.com\/news\/politics-government\/capitol-alert\/article207741689.html\"> introduced<\/a> a measure to change the standard for when police can use deadly force under California law.<\/p>\n<p><b>JJ:<\/b> That\u2019s exactly what I wanted to move on to, because cases like <i>Kisela<\/i> certainly encourage a person to think that the law is just not going to be the arena for justice on these issues. And that\u2019s why people are in the street, you know? But we also need a multi-front fight. And so it\u2019s very interesting to hear that in California, there is some possible forward movement in terms of policy or law. So maybe tell us more about this Police Accountability and Community Protection Act.<\/p>\n<p><b>PB:<\/b> Yeah, the bill, which is<a href=\"http:\/\/www.sandiegouniontribune.com\/opinion\/editorials\/sd-stephon-clark-weber-police-shootings-20180405-story.html\"> Assembly Bill 931<\/a>, carried by Shirley Weber, an Assembly member from San Diego, would change the state law that authorizes police officers to use force, and be explicit that deadly force should be used only when necessary, only when alternatives\u2014such as using de-escalation tactics to defuse a situation and avoid force, or using lesser alternatives \u2014 when those aren\u2019t reasonable in the circumstances.<\/p>\n<p>It would also make clear that an officer\u2019s use of force would be evaluated not just on their decision to pull the trigger at that particular moment, but on the officer\u2019s entire course of conduct. So that an officer who effectively creates a circumstance where they\u2019re under an imminent threat might still not use force, legitimately, under this standard.<\/p>\n<p>And a good example of that is, under the current constitutional law, an officer who jumps in front of a moving vehicle might be faced with a deadly threat of a vehicle coming towards them, and could potentially fire and kill the driver, even though they both created that circumstance by jumping in front of the car, and might have had alternatives as simple as stepping out of the way.<\/p>\n<div id=\"attachment_8925985\" style=\"width: 360px\" class=\"wp-caption alignright\"><img loading=\"lazy\" decoding=\"async\" class=\"wp-image-8925985\" src=\"https:\/\/fair.org\/wp-content\/uploads\/2018\/04\/Vice-Deadly-Force.png\" alt=\"Vice: POLICE ARE FURIOUS CALIFORNIA LAWMAKERS ARE TRYING TO LIMIT THEIR USE OF DEADLY FORCE\" width=\"350\" height=\"210\" \/><\/p>\n<p class=\"wp-caption-text\"><em><strong>Vice News<\/strong> (<a href=\"https:\/\/news.vice.com\/en_us\/article\/qvxza3\/police-are-furious-california-lawmakers-are-trying-to-limit-their-use-of-deadly-force\">4\/5\/18<\/a>)<\/em><\/p>\n<\/div>\n<p><b>JJ:<\/b> Right. Well, what do you make then, of the <a href=\"https:\/\/news.vice.com\/en_us\/article\/qvxza3\/police-are-furious-california-lawmakers-are-trying-to-limit-their-use-of-deadly-force\">response<\/a>? I mean, people knew as soon as this came forward, and this is of course in <i>immediate<\/i> response to the<a href=\"https:\/\/www.theguardian.com\/us-news\/2018\/mar\/27\/stephon-clark-police-shooting-brother-interview-sacramento\"> killing<\/a> of Stephon Clark, but, of course, in really bigger-picture response to the thousands of killings by law enforcement of unarmed people, of people holding things that were not guns, in which we were constantly being asked to consider a decision made by law enforcement reasonable, even when a person captured on video appeared to be posing no threat. All of this led up to the putting forward of this law, of this bill, in California, and we could expect a big pushback from it. And here it is, you know?<\/p>\n<p>And so we have the Los Angeles Police Protective League<a href=\"https:\/\/twitter.com\/LAPPL\/status\/981283058455265280\/photo\/1\"> saying<\/a>, &#8220;The new proposal demands that officers have a Monday morning quarterback\u2019s perspective before game day on Sunday.&#8221; Followed by, \u00a0&#8220;If enacted, it will either get cops killed or allow criminals to terrorize our streets unchecked. Pick one.&#8221; And then the putatively sympathetic, that I\u2019ve heard, which is, well, this is just going to change the words that cops use when they try to justify excessive use of force. How do you respond to that?<\/p>\n<p><b>PB:<\/b> I think it\u2019s important to recognize that a number of law enforcement agencies across the country have adopted elements of this law, and some have adopted <i>all <\/i>of the elements of this law. And they\u2019ve worked to reduced force, and have not resulted in either higher rates of assaults on officers, or injury to officers, or in higher crime rates.<\/p>\n<p>So first, some major law enforcement organizations\u2014the Police Executive Research Forum and the International Association of Chiefs of Police, both associations of police management\u2014have put out<a href=\"http:\/\/www.theiacp.org\/Portals\/0\/documents\/pdfs\/National_Consensus_Policy_On_Use_Of_Force.pdf\"> recommendations<\/a> about use of force policies that<a href=\"http:\/\/www.theiacp.org\/Portals\/0\/documents\/pdfs\/National_Consensus_Policy_On_Use_Of_Force.pdf\"> recommend<\/a> departments adopt higher standards than the constitutional minimum. Part of the problem is, police officers are essentially authorized to use any force that isn\u2019t illegal under the federal Constitution. We can ask more of our police than that.<\/p>\n<p>Some departments have, in fact, adopted these higher standards, particularly those that were under US Department of Justice supervision, so Seattle, Chicago recently adopted the higher use of force standard, and New Orleans and some others.<\/p>\n<p>And in Seattle, there\u2019s very clear<a href=\"https:\/\/www.seattletimes.com\/seattle-news\/crime\/in-major-step-federal-monitor-finds-seattle-police-use-of-force-reforms-are-working\/\"> evidence<\/a> that since adopting a higher use of force standard, that requires necessity for deadly force, that looks at the officer\u2019s entire course of conduct, that requires de-escalation, all the elements of this bill\u2014their use of force has dropped, their crime rate has also dropped, and there has been no evidence that the use of force standards have put officers in any greater danger; officers haven\u2019t been subject to assaults or additional danger because of this standard. So the bill puts in place a common-sense rule that police should only shoot people when they absolutely have to, and one that has proven effective.<\/p>\n<p><b>JJ:<\/b> We\u2019ve been speaking with Peter Bibring; he\u2019s director of police practices at the ACLU of Southern California. You can follow their work on this and other issues online at<a href=\"https:\/\/www.aclusocal.org\/\"> ACLUSoCal.org<\/a>. Peter Bibring, thank you so much for joining us this week on <b>CounterSpin<\/b>.<\/p>\n<p><b>PB:<\/b> Thank you for having me.<\/p>\n<p>&nbsp;<\/p>\n<p><span class=\"et_bloom_bottom_trigger\"><\/span><script async src=\"http:\/\/platform.twitter.com\/widgets.js\" charset=\"utf-8\"><\/script><br \/>\nThis piece was reprinted by <a href=\"http:\/\/rinf.com\">RINF Alternative News<\/a> with permission from <a href=\"https:\/\/fair.org\/home\/we-need-to-change-the-rules-for-when-police-can-shoot\/\">FAIR<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Janine Jackson interviewed Peter Bibring about excessive force law for the April 13, 2018, episode of CounterSpin. This is a lightly edited transcript. Play Stop pop out X MP3jPLAYLISTS.MI_0 = [ { name: &#8220;1. 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