The police are almost never prosecuted because they are viewed, by the law, under a similar standard as the rest of the population, the reasonable person standard (“what would a reasonable person do?”). In the case of police, the standard becomes the reasonable officer standard: “What would a reasonable officer have done in a similar situation?”


In regard to police shootings, loss of human life is always a tragedy. Sometimes the loss of human life is justifiable (for instance, defense of self or others), but it is no less a tragedy. Respect for human life is the most basic and most important place to start this conversation. The second stone in the foundation of this talk might be my lack of trust in the media to report the details correctly.

What People Care About

Let’s get one thing clear, I am absolutely not claiming “Fake News.” I am remarking on the concept that with sensationally ugly situations, it is good to be generally informed, but bad to feel strongly about these things. You, the news consumer, are not expected to know what the (in no particular order) jury, witnesses (those who were actually there, including the defendant, or studied the situation closely), Judge, defense attorney, and prosecutor (or plaintiff’s attorney) knows. Some of those boring details are less interesting to report on but can be significant to the outcome of a case or the meaning of guilt.

One of the things that I notice in the aftermath of most publicised police shootings is that people are outraged at the lack of prosecutions of the police involved. Or, in the uncommon circumstance that the police are prosecuted, the police are rarely convicted. Let’s focus on the police shooting of unarmed people. These particular kinds of shootings are least defensible from the government’s standpoint.

The Breakdown

As noted above, the standard is the Reasonable Officer Standard. As a side, but related, note – I taught the legal portion of a concealed weapons class in Alaska. The standard for the police is pretty close to the standard for anyone using lethal force. In essence it can only be used in self-defense or defense of others at the moment; i.e. you cannot go think about it for a few hours and go find and tell the other guy “hey, I think you are going to severely injure me or someone else, so I’m going to put you down before that happens” and expect to be found innocent.

The “Reasonable” Standard

My students would ask “what does ‘reasonable’ mean?” It’s a good question, frankly. Who decides who is reasonable or what is reasonable? It seems like such a vague term to use in something as important as laws surrounding when it’s OK to use lethal force and potentially kill another person. (A) the vagueness is necessary to apply to the infinite number of situations that people may find themselves involved with and (B) it is shorthand to mean “everybody knows or should know how to act, here. Just do that.”

That’s great, but what does it mean? The students would continue to ask. My answer is not my own. I am borrowing it from another source. Unfortunately, I do not remember who that person is, so if that person comes forward I will be happy to give credit. Here is what reasonable means in the context of the reasonable officer, reasonable person, and any other standard surrounding the term reasonable in the law:

It means exactly what a group of 12 of your peers thinks it means. The idea being that a group of 12 people will remove the rough edges from most individuals’ definitions and approximate an objective standard. Though the definition is imperfect, you are expected to know this standard, naturally. You apply it every single day. Do you drive? You are held to the reasonable driver standard. Do you ever use gardening tools like a chainsaw, ax, or spade? You are held to the reasonable chainsaw, ax, or spade user standard.

You get the idea. So, what sort of things would a court, or the prosecutor who originally brings the charges, look at? The totality of the circumstances; what would a reasonable officer have done in that situation. The situation may be chaotic, stressful, involve shouting, threats, innocent people around, and a victim who could be acting unpredictably or in a threatening way, or totally normal. What would a reasonable officer do in that circumstance?

A Real World Example

We need to apply this to a situation, so I’ll point out one situation that ended without a shooting but could have easily gone the other way. In the video, Enrique Mendoza was tuning his show/competition car which has a feature called anti-lag (they call it to launch control in the video). This is a real/useful feature for competition vehicles. The feature can, however, sound remarkably similar to fully automatic rifle fire. Nearby police called for backup and went looking for the source of the noise.

People watching the video have a lot of opinions ranging from something like “the cops did a great job,” thanking them for looking for what really could have been automatic gunfire, to something like “the cops are rude, racist, and were totally out of line speaking to a citizen that way!” There was also a smattering of other comments that were entirely inappropriate, too; FYI. Let’s apply the reasonable officer standard here.

As a former prosecutor, I look at this video (my opinion is just one opinion, and not necessarily the correct opinion) and see officers in the present general climate of gun violence. In present times, out-of-control gunmen have inflicted an intolerable number of casualties and grief. Not seeing the vehicle in the video, and only hearing the vehicle make the noises would lead many folks to believe there might be something very sinister happening. The police, presumably, were able to narrow where the sound came from based on the totality of the circumstances, investigated and left without incident; albeit with some cursing and aggressive behavior. That’s where I would leave this.

Did They Meet The Standard?

These officers acted reasonably, insofar as nobody was shot. The human inside the prosecutor in me would also note the officers were rude. They absolutely continued to interrupt Mr. Mendoza every time he tried to answer their questions and at one point called him a liar. As an aside, if officers have reason to believe someone is lighting off automatic weapon rounds inside the town, how intensely do you want them to investigate?

Rudeness is the officers’ supervisor’s purview to deal with. They may be fine with how the officers acted, given the intensity of the perceived threat and the present social climate or the supervisor may discipline the officers and expect them to be polite in all circumstances. I don’t know. That’s why this is a great example to apply the standard. We can now do some imagining.

Imagine if the police arrived with guns drawn (it appears that police did arrive in force and with weapons drawn) and shouting questions about where the guns are and Mr. Mendoza shouted back “I’LL SHOW YOU WHERE THEY ARE!” while reaching for his cell phone (so he could film the officers while he demonstrated his car’s anti-lag system) with a quick arm motion. This would not have ended with everybody apologizing and chuckling.

Flexible Out Of Necessity

Would it have been reasonable for the officers to open fire on Mr. Mendoza with the story tweaked as I tweaked it? Think about every police shooting in the news. Think about the level of alertness officers are for a routine traffic stop. Think about the level of responsibility officers are charged with by even carrying a weapon. By the way, anyone carrying a weapon is under a similar standard of care.

Carrying a gun requires carrying with it a severe level of responsibility. Think about the training officers receive about how to limit fatalities during mass shootings and appropriate responses on arrival. I’m positive Mr. Mendoza is grateful to the level of training that the police heeded by not firing on him. Mr. Mendoza should be commended for keeping so cool under the circumstances, too.

Clearly, an armed officer in an agitated state looking for a potential shooting spree suspect would be enough to unnerve the best of us. I personally might have just started shouting (in a scared way) “IT’S THE CAR NOT A GUN!” loudly and repeatedly until they asked me to prove it, but doing so might have also turned the situation into a less desirable one than did Mr. Mendoza’s story.