Posted in Civil Rights,Excessive Force on January 24, 2015
The last moments of Terrence Walker’s life are captured on video taken from the lapel of Muskogee Police Officer Chansey McMillin. McMillin shot and killed Walker as he fled an investigative detention. McMillin was called to the scene based on a 911 call that Walker had a gun and was threatening to kill his ex-girlfriend.
These facts are not merely interesting background; they are critical to understanding the legal analysis for the shooting: what did McMillin know when he encountered Walker?
But McMillin’s knowledge-base doesn’t justify the shooting; it must combine with something more. After all, Oklahoma is an Open Carry state, so mere possession of a firearm is not indicative of criminal activity, and the call to 911 could be motivated by something other than the truth.
The lack of first-hand information gives McMillin reason to be guarded, but skeptical in his approach. And, McMillin’s decision to approach Walker is critical to understanding how the shooting unfolded.
McMillin approached Walker before speaking with anyone at the scene, and without waiting for a backing officer. These decisions increased the risk to McMillin and prevented him from assessing the demeanor of the witnesses: were they in immediate fear? Or was this an overblown domestic dispute? We cannot know.
We do know this was not an active shooter situation, and the scene in the parking lot is not indicative of any chaos that compelled an immediate response to stop Walker.
By proceeding without a backing officer, McMillin increased the risk to himself, which likewise increased the potential need to use more force than would otherwise be necessary if a backing officer was on scene.
For example, the likelihood of Walker attempting to flee is reduced if he’s facing two officers, and if he did attempt to run, the second officer is in a much better position to immediately deploy non-lethal force, like a Taser in dart mode.
Would the outcome be different if McMillin had taken these additional steps? Possibly. Were his decisions driven by poor tactical training or deficiencies in police policy? Perhaps.
But what about the shooting itself? Did Walker’s actions justify the use of deadly force? Answering that question requires a review of the Supreme Court’s decision in Tennessee v. Garner, 471 U.S. 1 (1985).
Garner involved the use of deadly force against an unarmed fleeing suspect. The Court held that deadly force was not appropriate unless the officer had probable cause to believe the suspect posed an immediate significant threat of death or serious physical injury to the officer or others.
In other words, deadly force is permitted– even against an unarmed suspect– where the officer has probable cause to believe the suspect poses such a threat.
But what about situations involving armed suspects? Garner addressed that situation too:
Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
See Garner at 11-12.
As applied to the Walker shooting, McMillin knew that Walker had a gun, and based on 911 calls, McMillin could reasonably believe that Walker had threatened to kill his ex-girlfriend. When Walker ran, the video shows him dropping an object and stopping to pick it up.
Whether the object was a phone or gun is of no consequence here because the law does not require that McMillin put his life in jeopardy to guess correctly.
Similarly, whether Walker pointed the object at McMillin in fact is equally unpersuasive because in that split second, McMillin is not required to contemplate the accuracy of the gesture. So long as McMillin could reasonably perceive the gesture as Walker pointing a weapon at him, then McMillin’s actions are likely justified.
As an aside, assuming the shooting is justified under the Fourth Amendment, that conclusion may insulate Muskogee from any constitutional liability based on its policies.
In City of Los Angeles v. Heller, 475 U.S. 796 (1986) the Supreme Court held that, “If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point.” Id. at 799.
This principle is not absolute, and courts have carved out exceptions, but generally speaking, the shooting of Terrence Walker appears to comport with prevailing principles of constitutional law.
Whether those principles are wise or prudent is another matter entirely.
If you have questions about excessive force or police misconduct, contact the Tulsa attorneys at Bryan & Terrill Law, 918-935-2777.