In Baton Rouge, why not to rush to judgment

Editor’s Note: Philip Holloway, a CNN legal analyst, is a criminal defense lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association’s criminal law section. Follow him on Twitter: @PhilHollowayEsq. The opinions expressed in this commentary are solely those of the author.

The shooting death of Alton Sterling is the type of encounter that law enforcement officers dread: responding to a vague call about someone with a gun. The officers in Baton Rouge were told Sterling had a gun in his pocket and that he had been threatening others with it. They had no way of knowing for sure if they were headed to a really bad situation, like an active shooter, or a potential false alarm. Prudence dictated that the officers brace themselves for the worst and hope for the best.

Whether officers decide to use a Taser or other force to subdue someone, their split-second decisions will definitely be closely scrutinized. It’s important for them to stay focused and calm and to try to avoid escalating tense situations whenever possible. We need more information in this case before drawing conclusions about whether this police use of force was legally justified. With that disclaimer, my instinct, based on what we do know, is that it was probably justified under the law. However, there is a difference between “justified” and “necessary” – and whether it was necessary is a question that can only be answered after the independent investigation has run its course. A proper investigation is an objective quest for the truth based on evidence – not emotion.

The reason this officer-involved shooting was most likely legally justified is that in 1989, in deciding the case of Graham v. Conner, the Supreme Court provided a legal standard on the police use of force that is quite flexible. The issue of justification depends in large measure on the eye of the beholder. Under Graham, all police use of force must be “objectively reasonable.” In other words, under like or similar circumstances would a hypothetical “reasonable” officer have done the same thing? The court cautions against the use of hindsight and instead encourages viewing the incident from the perspective of the officers on the scene who are dealing with a dynamic and fluid situation with limited and sometimes incorrect information as to whom they are dealing with. Also, what is important is the totality of the circumstances, not any one particular fact or circumstance.

Given what we know now, it certainly seems like the officers reasonably believed they were responding to a call dealing with an armed suspect who was threatening people with a gun. And according to the account offered by the owner of the store outside which the encounter took place, officers first used a Taser on Sterling. Having the word “gun” in their minds going into the encounter would have put them in a mindset that would – understandably – set the tone for the encounter and make the use of a Taser appropriate before the encounter became fatal. Normally, Tasers can be used as a nonlethal alternative to deadly force in situations where deadly force would nonetheless be justified.

Many very smart people swear by Tasers as a useful tool that saves lives. Perhaps that’s true, but I personally have never cared for them because of their likelihood to suffer deployment failures and pose medical risks. It’s entirely possible the police officers’ use of a Taser is what escalated things in their encounter with Sterling. Being tased, when it didn’t work to subdue him, might have made Sterling very agitated and possibly combative. This has been known to happen before in cases involving persons who were on drugs or suffering from psychological problems.

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Though it seems like things might have been handled better by both sides, we need more information before drawing conclusions. Indeed, Graham v. Connor cautions that we aren’t supposed to play armchair quarterback. So we must wait for all the facts to emerge before making any accusations. It’s premature to label the officers involved as “judge jury and executioner.” After all, the suspect did have a gun in his pocket and the police shouldn’t be expected to wait for him to reach for it. Before reacting to a 45-second cell phone video, disturbing as it is, we must make determinations based on the totality of the circumstances as those at the scene – officers, witnesses and Sterling – experienced them.

Philip Holloway, a CNN legal analyst, is a criminal defense lawyer who heads his own firm in Cobb County, Georgia. A former prosecutor and adjunct professor of criminal justice, he is former president of the Cobb County Bar Association’s criminal law section. Follow him on Twitter: @PhilHollowayEsq. The opinions expressed in this commentary are solely those of the author.