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When police kill sleeping people, it is time to ask how police tactics set the stage for violence
What is an appropriate response to a person found sleeping or unconscious with a gun nearby? In California, police have followed a pattern: Medical personnel are called off, police draw their guns, surround the person, and wake them up. When the person reacts with a startled movement, police shoot to kill.
Since 2015, California police have killed at least five people this way; the latest shooting was on Feb. 9 in Vallejo, a city about 30 miles north of San Francisco. Vallejo police officers responded to a report of a driver later identified as 20-year-old Willie McCoy “slumped over” in his car outside a fast-food restaurant. Police “alleged that officers found him with a handgun on his lap at the drive through, and that the car was on and locked. They called for backup, and as they were trying to wake him, he ‘quickly moved his hands downward for the firearm,’ the department alleged.” The six officers on the scene fired more than a dozen shots at McCoy, prompting his family to say that he was “executed by a firing squad.” [Sam Levin / The Guardian]
Oakland police approach armed sleeping people with tactics from the department’s “Barricaded Subject Incidents/Hostage Negotiation/High Risk Arrest/Warrants” training bulletin. Last year, officers surrounded a man who was unconscious on the ground between two houses before “OPD’s armored vehicle, a Lenco BearCat, arrived. The police parked the BearCat directly in front of the alleyway where [the man] was lying. From behind its bullet-proof plates, officers trained AR-15 rifles on him.” The man woke up soon after and was killed in a fusillade of rifle fire. [Darwin BondGraham / East Bay Express]
Police explanations, media coverage, and even critics of law enforcement often begin with the unstated assumption that a sleeping person near a gun presents an inherently volatile situation that warrants aggressive law enforcement intervention. A San Francisco Chronicle article framed the debate as whether police should do more to “defuse” or find a “peaceful resolution” to these situations. [Gwendolyn Wu, Megan Cassidy, Jill Tucker / San Francisco Chronicle] In 2016, the mayor of Inglewood praised officers for trying to “de-escalate the situation” after they found a man and woman unconscious inside a locked car. The woman, sitting in the passenger seat, had a gun on her lap. The “de-escalation” involved boxing in the couple with four patrol cars and trying to rouse them with an air horn, blaring sirens, and by bumping their vehicle with a patrol car. Officers said they opened fire when each person woke up and reached for the woman’s lap. [Angel Jennings / Los Angeles Times] and [Frank Stoltze / LAist]
Starting from the dubious premise that sleeping people near guns are ticking time bombs that must be defused at all costs, the police tactics that start the chain of events go unquestioned. As Jeff Martin, a former San Jose police sergeant and “use-of-force consultant” told the Chronicle of the choice to shoot, “should [police] make the decision that makes it more likely they’ll be shot or should they make a decision biased in favor of their own survival?” [Gwendolyn Wu, Megan Cassidy, Jill Tucker / San Francisco Chronicle] But what if officers are in that position only because of their unreasonable actions in the first place?
The problem of police needlessly turning peaceful situations into tense and violent encounters is not unique to the sleeping and unconscious. It’s frequently cited as the reason police end up killing people who are experiencing mental or emotional distress, and Department of Justice reports on policing in Baltimore and Ferguson, Missouri, describe how police provocation often presaged force used disproportionately against Black civilians.
But despite these reports and the entire Black Lives Matter movement, police continue to escalate situations. Many factors contribute to this, but some legal scholars insist that one is particularly salient: Federal judges let police get away with it. When victims of police violence bring civil rights claims for the excessive use of force, many federal courts refuse to consider how police tactics set the stage for violence.
Excessive force claims are governed by the Fourth Amendment’s prohibition on “unreasonable” seizures. To decide whether force is reasonable, the Supreme Court has instructed courts to consider “the totality of the circumstances” from the perspective of the officer, while emphasizing that “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” [Graham v. Connor]
But what are the relevant “circumstances” that form the “totality”? The Supreme Court hasn’t said, and in 2017 it expressly left open the question of whether it’s relevant that officer tactics themselves created the “tense, uncertain, and rapidly evolving” situations that police invoke to justify using force. [County of Los Angeles v. Mendez] With the question unresolved, most courts focus only on the final moment when force is used, isolating the “split-second judgment” to pull the trigger and disregarding the police conduct that led to that point.
Michael Avery, a professor at Suffolk University Law School, wrote that “many of the lower federal courts have become mesmerized by the concept that police officers are forced to make decisions about the use of force in split seconds. … Rather than judging the use of force in the more appropriate matrix of the ‘totality of the circumstances,’ the urgent perceptions and fears of the officer at the precise instant force is used become controlling factors.” [Michael Avery / Columbia Human Rights Law Review]
The Seventh Circuit Court of Appeals, for example, unapologetically rejected the notion that it might question how police do their jobs: “If the officer had decided to do nothing, then no force would have been used. In this sense, the police officer always causes the trouble. But it is trouble which the police officer is sworn to cause, which society pays him to cause and which, if kept within constitutional limits, society praises the officer for causing.” [Plakas v. Drinski]
Cara McClellan, a Skadden Fellow at the NAACP Legal Defense Fund, argues that the Fourth Amendment should not ignore the reality that “tactics leading up to the use of force can influence whether the force used was necessary,” and that more exacting constitutional review would prove a valuable tool for police accountability. “Viewing excessive force claims as a chain of events is essential to … creating accountability for police conduct that escalates an interaction. By incorporating principles of causation, excessive force claims have the potential to provide an important deterrent to police officers’ abuse of [power].” [Cara McClellan / Columbia Journal of Race & Law]
And it’s not hard to see how. In the case of an unconscious person, if the entire chain of events is up for review, then police would have to answer questions like the one posed by the cousin of the man police killed this month in Vallejo: “Why didn’t you call a paramedic? He could have been having a heart attack. The medicine you delivered was a cruel and unusual punishment.” [Sam Levin / The Guardian]
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