The safest thing to do

It’s the middle of the night and you hear a strange noise outside of your home. You suspect it may be a burglar so you get dressed and grab your legally owned gun and go look around. I wouldn’t personally have a gun in this scenario but many people would and for better or worse this is what people do when they are scared in their homes. This is how the right to own a gun is specifically sold to us. If not for this then what?

So you go into the garage and turn on the lights and open the door and you step outside and you see what you think is a suspicious man creeping around with a rifle so you begin to raise your gun perhaps to scare him off and before your hand even makes it above your waist you are shot three times.

It was the police that killed you. Without any sort of warning or identification. Like you the policeman was scared for his life. The natural resting state of the American policeman is to be scared even while always holding all of the power in any given situation.

Unlike you a person who was fast asleep mere minutes ago it was the policeman that set this course of events into action.

To make matters worse in this scenario the cops had no business with you in the first place. They were at the wrong address responding to a call that had nothing to do with you. They fucked up evidently and obviously in numerous ways and now you are dead.

Now imagine your wife watched all this happen. Do you believe she should then be able to sue the police officer in question for use of excessive force in violation of your Fourth Amendment rights?

Not according to the 11th Circuit Court of Appeals who this week upheld a district court’s previous ruling that a cop killing an innocent person under these exact circumstances should be granted qualified immunity. The court found no similar enough previous case law that stipulated that Henry County, Georgia police sergeant Patrick Snook was legally required to identify himself before shooting sixty three year old William David Powell to death on his own property in June of 2016.

“[W]as it clearly established that under the circumstances of this case the Constitution required Snook to warn David Powell before shooting him?” the court asked.

No it was not they answered.

“When David Powell started to raise his pistol while facing in Officer Snook’s direction, Snook had the authority to use deadly force,” they decided.

It would not be clear and obvious to any reasonable officer that a warning was required in the 17.8 seconds between when David Powell pushed his garage door button and raised his loaded pistol in Snook’s direction. A reasonable officer could have decided, as Snook did, that the safest thing to do as David came out of his garage with a pistol at his side was to wait and see what he did with the pistol before Snook drew attention to himself and potentially escalated the situation by shouting a warning.

Citing previous case law they wrote that giving a warning in some situation may “cost the officer his life.”

Wait wait “the safest thing to do” here was to not identify himself as police (?) Safer for fucking who?

In other cases police shootings are later justified by courts because they do in fact identify themselves and the person they kill doesn’t immediately comply. The opposite apparently gets them off the hook as well. A cop’s right to skulk in the bushes on stealth mode must apparently be upheld.

As I’ve written in here before numerous times while covering other qualified immunity cases there’s almost nothing the police can do to harm us that can’t be reasoned after the fact into a justification for why they were right to do it.

The court did however admit they find the whole thing sad here so that’s at least something right?

“Lawsuits involving claims that officers used deadly force in violation of the Fourth Amendment often involve tragic circumstances,” they wrote. “This one does.”

Ok!

The officers were dispatched that night after receiving a 911 call about what seemed to be a domestic violence situation. Due to a series of communication errors which the court’s finding lay out in detail the police just could not find the house the disturbance was coming from so they guessed and settled on the home of the Powells to go poke their snouts into.

When Powell’s wife sued Snook and a bunch of other cops involved (it ultimately ended up only being Snook however) her argument was pretty reasonable sounding to me the layman and to anyone else without fatal cop- or judge-brain poisoning. She argued in court that Snook could not constitutionally use deadly force against her husband without first identifying himself and giving a warning.

The 11th Circuit explained her argument:

Powell argued Snook could have “easily” given that warning because David was not an immediate threat, refusing any officer’s command, or attempting to escape. She asserted that our case law recognized that the “mere presence” of a firearm isn’t enough to warrant the use of deadly force and that the reasonableness of any force depends on whether a suspect poses a threat of serious physical harm, with an emphasis on the level and immediacy of the threat. She also asserted that since Garner the law has been “abundantly clear that officers should issue a warning unless it is not feasible to do so before using deadly force” and argued that Snook had “ample opportunity (at least 17.8 seconds) to identify himself and give a proper warning before deadly force was used.”

The District Court who first granted Snook qualified immunity said the previous cases she cited weren’t specifically and exactly similar enough. In Garner it was about cops shooting someone in the back who was running away. In this case Powell was facing the cop and in the process of raising his arm so it’s different. Never mind that the cop was crouching in the dark and had never announced who the fuck he was and what he was doing there. This is what the fucking disgraceful practice of qualified immunity does it says if the circumstances aren’t exactly like some other previous case then there is no way the cop could have known that was he was doing was bad.

After concluding there was no relevant decisional law clearly establishing that Snook violated David Powell’s Fourth Amendment right to be free from excessive force, the district court considered whether Snook’s conduct “was so obviously at the very core of what the Fourth Amendment prohibits that any officer would know the conduct was illegal.” In concluding that it was not, the court reasoned that the “decisive factor” was that David Powell “carried a gun in his right hand and began raising that gun in front of a police officer” and while facing “in the direction of the officer.” The court granted summary judgment on qualified immunity grounds because it was not clearly established that the use of deadly force in these specific circumstances violated the Fourth Amendment.

The 11th Circuit agreed with that assessment. They go on to explain that “the law does not require officers in a tense and dangerous situation to wait until the moment a suspect uses a deadly weapon to act to stop the suspect.”

The problem here is first of all Powell was not a suspect and had not done anything wrong. On top of that only one party here understood that a police action was transpiring. Further still shouldn’t it change things when the police themselves are the instigators of the tense and dangerous situation in question? You see how this works right? The cops start some shit and they become frightened for their safety and therefore any action by a citizen in their vicinity at that point becomes justification for the use of deadly force. This is already egregious when it happens in public in the broad light of day when it is evident to everyone that the police are doing police shit but it’s worse by orders of magnitude when it’s the middle of the night and the citizen in question — as in the more recent case of Amir Locke being murdered by Minneapolis police — has no idea who the fuck it is that has come onto their property.

To anyone outside of the carceral apparatus this all seems like a gross violation of Powell’s Fourth Amendment rights. It should also give the fiercest proponents of the Second Amendment — like the NRA and most cop kissers for some reason — pause as well. (It will not but it should.) Again as we saw with Amir Locke it begs the question: Does a person really even have a right to bear arms if the mere possession of said weapon is always going to be an excuse for the police to strike you instantly dead?

Sadly for now and once again there will be no justice for the victim’s family and no consequences for the police when they murder citizens. None via the courts anyway. Sergeant Snook has since died of Covid.

The other day I sent out to paid subscribers a piece largely about a stunning book I just read called Fever Dream but also about the dread of parenting and always expecting something bad to happen any minute always.

It starts like this:

There’s a scene in the book Fever Dream by the Argentinian writer Samanta Schweblin that’s one of the more unnerving things I’ve read in years. The entire book is just that. Unnerving. It’s a fever dream after all. It does what it says on the can as they say. It’s an allegory too. One about ecological poisoning in the grand tradition of South American surrealist literature. The main character is a woman named Amanda who is dying for reasons we don’t understand at first and she’s relaying the last day she can remember to a child named David who may or may not be inside of her head. David is a scary child trope of sorts who says spooky opaque shit and fucks with animals and so on but it doesn’t matter he is nonetheless a very scary child. Unnerving like I said.

When the book opens David is acting as something like an infernal inquisitor and an usher into the afterlife. He’s trying to lead Amanda to the appearance of the worms.

“It’s the worms,” he tells her. “You have to be patient and wait. And while we wait, we have to find the exact moment when the worms come into being.”

Do you ever wonder that yourself? When was the exact moment the worms came into being? Whatever it is you think that means. It probably means something different to every single one of us. Maybe it means nothing too and that’s fine.

Once the worms exist though they exist.

So Amanda tries remembering a day she spent talking with David’s mother while her daughter Nina played by a well. We’re already on edge at this point because we’ve heard about something terrible that’s happened to David so it’s established that this is a world where terrible things can and do happen to children…

Subscribe to read the rest here.