Protesters hold up a sign as they march in protest against the death of Stephon Clark. (Gabriela Bhaskar/Reuters)

Focusing on whether the shooting was lawful misses the larger point.

A terrible thing happened in Sacramento earlier this month. Police officers shot and killed an unarmed black man, apparently believing the iPhone he was holding was a gun. The body-camera footage is singularly unhelpful, except to provide evidence that the officers seemed to genuinely believe they faced an imminent, mortal threat. I’ll embed the footage below, but the basic facts are simple:


Police responded to reports of a broken window, and when you watch all the released footage, you can see that the initial response is quite calm and casual. Two officers politely knock on a door, ask permission to search a backyard, find nothing, and then walk back to the street. Meanwhile, a helicopter overhead spots a person apparently breaking a window and then jumping a fence and moving to a neighboring house, where he looks in a car window.

That’s Stephon Clark. The house he ran to is his grandparents’. There is nothing at that moment visible in his hands.

The police then run to that house, spot Clark in the driveway, and yell, “Hey! Show me your hands! Stop! Stop!” Clark flees to the back of the house, the officers pursue and round the corner of the house. There, one yells, “Show me your hands! Gun!” They retreat behind the corner for roughly one or two seconds, then they round the corner again. One officer yells, “Show me your hands! Gun, gun, gun!” and they start firing. Twenty shots later, Clark lies dead on the ground.



The encounter — from yelling “Hey!” to firing the first shot — took roughly 17 seconds, and I find it deeply disturbing and problematic. But not necessarily on the basis of the narrow legal question of criminal culpability. I do not believe a cop should be criminally prosecuted if he reasonably believes he sees a gun pointed straight at him and if the suspect is not complying with his commands. We don’t require cops to be omniscient, and the fact that the “gun” turned out to be an iPhone makes the shooting horribly tragic, not criminal.

But that’s not the end of the inquiry, not by a long shot. It’s one thing to be in hot pursuit of an armed robber or a known, violent felon. It’s one thing to approach a situation where you perceive that innocent lives are in imminent danger. It’s another thing entirely to deal with a person who, to that point, had broken windows, and no other civilian was perceived to be at risk.


Yes, before you object and tell me that routine encounters can and do escalate, I know that. But what I am questioning are probabilities and perspective. Here are some questions about probabilities. If it’s dark, police are sprinting, and flashlights are shaking, what are the chances that the cops’ first assessment that the suspect had a gun are wrong? What was the reasonable risk of backing off and continuing to give strong, verbal commands rather than immediately moving from cover to an exposed position and opening fire? What are the possibilities that the suspect hadn’t heard the commands at all? (There’s some evidence, from his grandmother, that he may have had earbuds in.)


Moreover, what is the background level of risk here? According to the City of Sacramento, it’s been almost 20 years since a cop was shot and killed in the line of duty.


Then there’s the perspective. It’s often said that cops have mere seconds to make life-and-death decisions, and that’s exactly right. But do you know who else has mere seconds? The suspect. A suspect who is far more likely to be frightened, confused, disturbed, or drunk than he is to be committed to killing cops.

When we speak about police shootings, we often focus too much on the most basic question — was the shooting lawful — rather than the far more complex and ultimately more consequential question. Was the shooting proper? Is this how we want to train police to respond? Is this how we should conduct escalation of force in an American neighborhood?

Too many members of the public and too many policymakers aren’t asking the hard questions about police mindsets, actions, and training.

I say no. I say that the escalation and response we saw in Sacramento is more akin to the kind of immediate escalation and engagement you’d find in a war zone when chasing a suspected terrorist. I say it’s more akin to the kind of immediate escalation and engagement you’d find in the United States when chasing a suspect who has already proven that he’s dangerous — by known prior conduct or by unmistakably violent conduct on the scene.

One of the reasons why it is typically (though not always) unjust to toss cops in jail for these split-second decisions is that they are often taught from the very beginning that their (admittedly dangerous) job is more dangerous than it is. They’re shown video after video — and told story after story — about routine calls that immediately escalate into fatal encounters, where unsuspecting cops are killed or maimed. This truth, however, sometimes leads to a deception, to a mindset that enhances the sense of risk way out of proportion to the actual threat.

I consistently see videos and reports of police opening fire in circumstances that are more reminiscent of the conduct of troops on patrol, or — even more disturbingly — less restrained than troops on patrol.


It is the job of the person in uniform not to think in terms of theoretical danger and legal justification but rather to keep in mind probabilities and perspective. What is the larger mission? What are the alternative courses of action that can accomplish that mission without escalating to deadly force? What is the degree of risk I should tolerate to execute that mission?

I fear that by constantly asking whether cops should go to jail, too many members of the public and too many policymakers aren’t asking the hard questions about police mindsets, actions, and training “left of boom,” before the shooting starts. In the military, we often spoke of the difference between the law of armed conflict and the rules of engagement. The law of armed conflict established the minimum legal standards for the use of force. The rules of engagement are those standards specifically tailored for the strategic and tactical situation on the battlefield. They constantly shift as risks and challenges evolve.

To carry forward the analogy: Cops don’t have a law-of-armed-conflict problem — the constitutional standards and state statutes governing when a cop can be prosecuted are appropriate — they have a rules-of-engagement problem. Training and escalation-of-force standards are too often not matched to the level of threat that police officers actually face or to the overarching mission of an American police force. And that mismatch inevitably leads to tragedy — tragedies where cops don’t break the law but a man dies, a family mourns, and a community fractures. It’s time to change the rules.