Loose gun laws make disputed police shootings more likely

The case of Philando Castile was a tragedy waiting to happen. Many cannot understand how a man legally possessing a firearm could be lawfully killed reaching for his wallet during a traffic stop, but implicit bias, the legal accessibility of loaded guns in cars and the legal definition of “use of force” make such killings too likely.

The law generally favors the police officer in use-of-force cases. Jurors in the Castile case were instructed to judge the use of force from the perspective of the police officer. They were specifically cautioned against using the “20/20 vision of hindsight” and told to allow for the fact that police officers have to make split-second decisions about the use of force under circumstances that are “tense, uncertain and rapidly evolving.”

The jurors were not instructed to consider that Castile also had to make a split-second decision. Castile told the officer that he lawfully had a gun. The officer told Castile not to reach for it but did not tell him to freeze. Castile had to decide whether it was OK for him to reach for his wallet. As someone who had no criminal record beyond traffic infractions, he may simply have been eager to produce his identification and permit and show the officer that he was “one of the good guys.” The officer claimed at trial that Castile actually reached for his gun, but Castile’s passenger said immediately after the shooting that Castile was reaching for his wallet when the officer opened fire. The jury most likely acquitted the officer because they believed that he had to make a split-second decision about whether Castile was reaching for the gun.

Determining what is reasonable behavior for both the police officer and the civilian in such an encounter is made more difficult by the lawful presence of loaded guns in the passenger compartments of cars in states such as Minnesota and North Carolina that grant permits for such possession. Castile had a right to the gun in his pocket. Most jurisdictions simply require that a permit holder inform a police officer of the presence of a permitted gun, which Castile did. Knowing that Castile had a gun would obviously have raised the officer’s stress level. Castile’s knowledge that the officer now knew of the gun would presumably have raised Castile’s stress level as well.

The margin for error in such an encounter is thin indeed. What further thins this margin of error in a discriminatory way is that social science evidence strongly suggests what most people intuitively understand: that we disproportionately fear young men of color such as Philando Castile. Even other young men of color, such as the Hispanic officer in this case, are not immune from sharing this bias.

The fundamental mistake, however, is to assume that these decisions must be split-second ones. Some police departments have begun training their officers to engage in “tactical retreats” when they can safely do so. Had the officer in this case been trained to retreat to a safe vantage point when confronted with an ambiguous motion, he would not have had to make the split second decision to shoot or not shoot. Tactical retreat greatly reduces the risk of an officer shooting an innocent person because it turns a split-second decision into a multisecond one. And it reduces the risk that the officer will have to live the rest of his life with killing an innocent person, a burden that no officer should have to unnecessarily bear.

Police should be trained in tactical retreat, and jurors should be instructed to consider whether use of deadly force in its absence is reasonable. Tactical retreat might allow some offenders to temporarily escape, but that is a small price to pay for reducing the chance of an unnecessary killing, especially when the risk of being killed is not born equally by all races.

More specific procedures for dealing with people who announce lawful possession of a firearm should also be developed. If a jurisdiction allows people to lawfully have loaded weapons in the passenger compartment of a car, both the officer and the person stopped should know exactly what they are supposed to do. Ambiguous instructions should not be considered reasonable behavior by a police officer. Conversely, failure of the permitted civilian to comply with these procedures should be grounds for a reasonable fear by the officer. The rules of the road for guns in cars need to be crystal clear.

This story was originally published June 22, 2017 at 6:40 PM with the headline "Loose gun laws make disputed police shootings more likely."