A Stitch in Haste

My father, a retired New York City police officer, enjoyed an extremely blessed career. In 22 years on the force he was never shot at, only fired his weapon once (and missed), and was only injured on the job once, a minor injury in a motor vehicle accident.

Civilians are generally willing to ask themselves the "big questions" when it comes to military combat — "Could I really shoot at another human being?" "Would I be brave or cowardly in combat?" "What if I inadvertently killed civilians?" "Could I face the family of someone I killed in war?" And so on.

But for some reason it seems we are less likely to ask those questions in the context of police officers. "How would I react in an armed shootout?" "Could I kill a criminal, even to save the lives of others?" "What if I hit innocent bystanders?" "What if he hadn't been reaching for a gun, but for his wallet?"

Is the combat of a "hot" crime zone any less challenging than the combat of a "hot" war zone? Are we to expect more flawlessness of our police in situations of armed violence than we expect of our soldiers? Are the bullets in a bank holdup any less deadly than those in Fallujah?

I hope people keep that in mind when they are tempted to pass judgment on these poor Men in Blue:

A toddler has been shot and killed in the US during a three-hour gun battle after her father used her as a human shield against police gunfire.

The 19-month-old girl's mother, Lorena Lopez, said she had pleaded with officers to hold their fire.
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"I told them that he needed help, he needs a psychologist, but please don't shoot. They didn't understand, and the police fired, like, 300 shots."

The perpetrator was also killed in the shootout; one police officer was wounded by gunfire.

It's very simple really: If you're being shot at, then you shoot back. Whoever's bullet struck and killed that innocent child, it was her father who killed her, not the police.

Yet these dedicated public servants, being human, will no doubt be haunted and traumatized by the girl's death, perhaps for the rest of their lives. No different than any combat veteran, or perhaps worse.

They do not deserve to have their remorse compounded by any media histrionics, lawsuits or activist protests. Now is not the time for any "No Justice, No Peace" gobbledygook.

And as for the "300 shots" remark, much the same garbage was chanted over the (entirely justified) killing of Amadou Diallo in 1999. "Was 41 shots really necessary for an unarmed man?" Without going into too much detail (e.g., the fact that he was propelled backwards into a vestibule and was propped up even after he had been shot, making it appear as though he might not have been wounded), simply ask yourself the combat questions: How would you react in a hostile combat situation? Are you really qualified to pass judgment on those who were?

If not, then shut up.

UPDATE #1: The discussion continues at this post.

UPDATE #2: And so it begins...

Consider the following hypothetical:

A negligence lawsuit has resulted from a motor vehicle accident. The sole question of fact is whether the defendant was speeding negligently. The physical evidence is inconclusive, and the litigants' testimonies obviously contradict each other.

There are, however, two eyewitnesses who are willing to testify, one on each side.

The witness for the defendant is "Mike," an average guy of average age, intelligence and education. He is not an expert in automobiles, but he has owned and driven cars his whole adult life. He has admittedly received a speeding ticket or two over the years, and has been in a few fender-benders, both his fault and not. He is willing to testify, truthfully, that in his opinion the defendant was not speeding negligently.

The witness for the plaintiff is "Maria," a 17-year old orphan who has lived her whole life in an abbey on the outskirts of town. The abbey belongs to a very cloistered, monastic order that has no significant contact with the outside world, including no television, radio, Internet or newspapers. Maria had, prior to the day of the accident, never seen even a stationary automobile, let alone a moving vehicle. The fastest she has ever traveled is 5 miles per hour, riding her antique velocipede around the abbey courtyard. The day of the accident was her first sojourn outside the abbey walls, to walk to a nearby estate to accept a temporary position as the governess for the Von Sirrine family children. She is willing to testify, truthfully, that in her opinion the defendant was speeding negligently.

The defendant seeks to bar Maria's testimony on the grounds that it is irrelevant — that Maria has no reasonable basis one way or the other to comment on the defendant's driving.

What result?

This was the point I was trying to make in my previous post about ordinary citizens passing judgment when police face criminal combat. I was trying to explain how the "reasonable person standard" prevalent throughout our legal system fails in the context of armed combat, an extreme situation that almost no reasonable person has ever experienced. I made only two observations:

1. That, for some non-obvious reason, police in "combat situations" seem to be held to a higher standard than soldiers in combat. (Sean Sirrine posits a possible reason here. Sean's an awesome new blawger, but I find his argument unpersuasive.)

2. That an ordinary citizen, inexperienced in such extraordinary situations, has no reasonable basis to declare that "the police should never return fire if they are being shot at by a deranged man holding an infant" or that "41 bullets were too many for an uncooperative suspect in a dark vestibule pulling a black object out of his pocket."

I did not suggest that police "can do no wrong."

I did not suggest that, in non-combat situations, ordinary citizens are not entitled to an opinion of how they are treated by police.

I did not suggest that police should never be subject to internal investigation and, if warranted, disciplinary action for misconduct.

I did not suggest that police should have absolute immunity.

I did not suggest that a police state is a good idea.

I might concede one relatively minor point. I blogged the following about police in "crime combat":

They do not deserve to have their remorse compounded by any media histrionics, lawsuits or activist protests. Now is not the time for any "No Justice, No Peace" gobbledygook.

Including "lawsuits" in that list seems to irk some people. I'll concede that point on the condition that a finding of misconduct must be made either internally or by an external audit by independent experts, but not by the jury. My thesis is that no civilian jury is competent to make such findings, just as they do not sit on military courts martial.

In other words, liability should not, in fact cannot, be a jury question (damages and other questions of fact could, however, still be left to the jury).

I am no apologist for bad police or bad policing. I have chronicled my outrage over police misconduct relentlessly. Which is exactly why I take having an accurate definition of "misconduct" so seriously.

Still, I appreciate all the comments and trackbacks to the original post. Thanks.

The 19-month girl used as a human shield by her father while he shot at police was, as feared, killed by a police weapon.

Which does not change the fact that the girl was killed by her father and not by the police.

The girl's mother and other family members deserve our condolences, no doubt. But so too do the police. As LAPD Chief William Bratton noted:

"Some officers are going through therapy right now and I don't know if some will even come back."

They are victims and survivors in just as real a sense as the child's mother.

And for the idiot remark of the day, as part of the continued attempt to foment public unrest and lay the groundwork for future litigation, we have this moron:

"It's been cruel what's happened to my brother," German Pena said. "They didn't have any patience, none at all, knowing that my niece was with him, that he was a father. They should have acted with more patience."

I wonder how "patient" Uncle Pena would be if he were being shot at, for three hours, by a deranged hostage-taker. I also wonder whether our troops in Iraq are ordered to be "more patient" when they encounter enemy fire.

Meanwhile, the investigation continues.

UPDATE #1: More idiot remarks here.

UPDATE #2: The toddler had cocaine in her system. That certainly puts a new perspective on the incident and the lethal parent.

Remember the Los Angeles toddler who was held captive and used, fatally, as a human shield by her father while he shot at police no less than four separate times? The chain of my previous posts on the incident is here.

The family of the toddler are now, perhaps unsurprisingly, preparing to sue the LAPD:

The claims, which were filed late Monday and accuse police of negligence, are a precursor to a civil lawsuit.
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Attorney Leo Carrillo, who is representing Suzie Pena's family, accused police on Monday of not giving negotiators enough time to try to talk the father into surrendering. He also accused officers of recklessly using a flash-bang grenade.

This is, of course, utter nonsense.

Negligence is the breaching of a duty of care owed to another. Another common definition is "the doing of something a reasonably prudent person would not do, or the failure to do something a reasonably prudent person would do, under the same or similar circumstances."

In this instance, as I explained in my previous posts, when one speaks of a "reasonably prudent person," one must of course be limited to a reasonably prudent police officer facing live armed combat. How is a lay jury supposed to determine what is reasonable when you're being shot at? It is folly to suppose that a lay civilian jury is competent to pass judgment on police officers in the context of armed combat.

Of course, the only standard of reasonableness in this circumstance is: "if you're being shot at, then it is reasonable to shoot back." Unless experts, particularly as part of an internal investigation, can objectively demonstrate otherwise, there simply cannot be an actionable claim in a fact pattern like this.

We rarely if ever second-guess our soldiers in matters of live armed combat. Law enforcement officers, in live armed combat, deserve the same presumptions and insulations from liability. If they're shooting at you, then it is per se reasonable to shoot back. No civilian has the right to say otherwise.

The father proximately caused the death of his daughter, not the police, and the police must not be held liable.

Overlawyered has more background on the litigation.