Editor’s Note: Danny Cevallos is a CNN legal analyst and a personal injury and criminal defense attorney practicing in Pennsylvania and the U.S. Virgin Islands. Follow him on Twitter @CevallosLaw. The opinions expressed in this commentary are solely his.
No criminal charges will be filed against a police officer who shot and killed Ronald Johnson
Danny Cevallos: In police use-of-force situations, the reality is that every case is different
Lately, Chicago has become an embattled city, with headlines on police shootings regularly making national news.
A few weeks ago, a police officer was charged with first-degree murder in the shooting death of 17-year-old Laquan McDonald. But this week, it was announced that no criminal charges would be filed against a police officer who shot and killed 25-year-old Ronald Johnson in October 2014 as he apparently fled from police. The McDonald case will now follow the familiar track of any first-degree murder prosecution, where decisions will be judged by a jury and scrutinized by the public. But the Johnson case turned out rather differently. Why?
The courts have offered guidance to assess police use-of-force situations, but the reality is that no two shootings are factually identical. That makes it difficult to rigidly apply precedential decisions by courts. Indeed, even Supreme Court justices have rejected the application of rigid tests or “magical on-off switches” to assess such cases.
Johnson was armed with a loaded gun at the time of the shooting, according to prosecutors, who relied upon the now seemingly ubiquitous dash cam video.
The prosecutors talked extensively about events leading up to the shooting, and even events that appeared tangentially related to the shooting. They had to. When determining the reasonableness of an officer’s use of lethal force, it’s a complex analysis that depends on the “totality of the facts and circumstances” known to the officer at the time force was applied.
For those who have seen the video, various views emerge. To many, a suspect with a firearm in his hands automatically justifies police use of deadly force. To others, the fact that a suspect is fleeing categorically means the suspect no longer poses a threat, and lethal force is not warranted. Reasonable minds can differ, but what about the law?
As with many things in the law, both positions are not always true, nor are they always false, either. It depends on the circumstances, the facts, and the jurisdiction.
The “fleeing felon rule” means that if an officer has probable cause to believe that a suspect poses a threat of serious physical harm to the officer or others, it is not constitutionally unreasonable to prevent the suspect’s escape by the use of deadly force.
This is why prosecutors go to great length to establish the facts available to the officers leading up to the shooting. The reasonableness of the force applied depends not just on what happened at the moment of shooting, but what the officer knew or didn’t know in the time leading up to that shooting.
What about firearm possession? This is where it gets confusing. Depending on the circumstances, the police may be authorized to use deadly force because they perceive a suspect has a firearm – even if it turns out there was no firearm. Courts have held that officers are still justified in using deadly force against an unarmed suspect, if they reasonably believed the suspect was carrying a gun.
According to one federal appeals court, an “officer is not constitutionally required to wait until he sets eyes upon the weapon before employing deadly force to protect himself against a fleeing suspect who turns and moves as though to draw a gun.” Another federal court of appeals upheld the use of force against a fleeing suspect who had 1) assaulted an officer and 2) appeared to be reaching under his car seat – even though no weapon was recovered at the scene. Sadly, because of news events over just the last few years, most of the public is now aware of this rule – that police use of deadly force does not require the actual possession of a weapon by a suspect.
On the other hand – and this may surprise many – a suspect’s mere possession of a firearm alone might not warrant lethal force. In one case, a suspect was exiting his home with a firearm in hand, but he held the firearm toward the ground, made no sudden moves, made no threats, and complied with commands. A federal appellate court concluded that this armed suspect did not represent an imminent threat. Significant in this holding is the nuanced distinction that it is the threat posed by the firearm that justifies the use of force, not the mere possession of a firearm. So then, it seems that sometimes a guy without a gun warrants lethal force; and other times, a guy with a gun does not warrant lethal force.
When you take this uncertainty in the law, combined with the acknowledged deference accorded to officers making split-second decisions, it’s no surprise that prosecutors struggle with the decision to proceed with lethal force cases against police officers.
While the law continues to be hazy on the use of deadly force against armed suspects, technology has resulted in a dizzying array of digital evidence available in these cases.
In just the press conferences of the last year alone, prosecutors have shown volumes of digital, audio and video evidence. Prosecutors used to put on their case to a jury to support their charges against a defendant. Lately, prosecutors find themselves in unfamiliar territory: putting on a case before the media and the public to support why they didn’t charge a defendant.
For centuries, law enforcement enjoyed the unquestioned discretion to charge or not charge defendants. Rarely did they have to explain why. Increasingly, local prosecutors have yielded to public pressure to make their process more transparent. It’s ironic: the public has demanded more transparency of a process that was never really transparent to begin with. Public pressure has resulted in more prosecutors showing evidence to us, along with their decision-making process. So, while prosecutors may retain that authority to prosecute or not prosecute, the public increasingly is exercising a new power: the authority to criticize.