should the cop really legally shot the fugitive? [David Sweat]

[Frank]

@Senegoid

Ng wasn’t subject to the death penalty. That is, he was, but the United States had to agree to renounce that and reduce his penalty to life in prison as one of the conditions for Canada to extradite him.

Ng currently resides on Death Row in San Quentin.

Ng fought a protracted legal battle against extradition on the grounds that Canada—which has no death penalty—would be violating the Canadian Charter of Rights and Freedoms by permitting him to stand trial in California for capital murder. A habeas corpus petition failed, as did an appeal to the Alberta Court of Appeal. In 1991 the Canadian Supreme Court also ruled against him (Reference Re Ng Extradition), and he was extradited to California later that year.

Anyway, if Sweat had been captured in Canada, extradition would have been a slam-dunk. There would have been no international repercussions had he been killed in Canada, although there may have been an internal (to Canada) debate about it for no apparent reason.

Kind of like what we’ve got here.

[Exapno_Mapcase]

Article on the subject from ABC News.

State and federal law allows the use of deadly force to prevent an escape if the officer believes the escapee poses a significant threat. Law enforcement experts say this shooting was clear-cut.

“There cannot be any cleaner situation than this one,” said Maria Haberfeld, head of the law and police science department at John Jay College of Criminal Justice. “You cannot shoot any fleeing felon, but certainly you can shoot the one who poses a real threat. There was no reason to believe this person who had killed a police officer before was not posing a real threat.”

The same legal reasoning applied to the killing of his accomplice, Richard Matt, who was shot three times in the head on Friday. Unlike Sweat, he was found with a weapon, a 20-gauge shotgun. …

A 1986 U.S. Supreme Court case known as Tennessee v. Garner laid out how force can be used to capture a fleeing suspect: Deadly force can’t be used to prevent escape unless “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

New York state law also allows for deadly force if a dangerous convict is escaping from a detention facility, which is why armed guards may be stationed in towers at prisons. …

“But these prisoners, they’ve gone through the justice system,” said Bill Johnson, head of the National Association of Police Organizations. Because they were convicted, “they’re not presumed to be an innocent citizen walking down the street.”

[Little_Nemo]

@Senegoid

Quite aside from the legalities of shooting him, there’s also a strong incentive to catch him alive just so we will have a better chance of learning the whole story. That’s generally considered important too.

I’m sure Joyce Mitchell and Gary Palmer would be happier if Sweat were also dead.

[Melbourne]

In Vic.Aus, Prison Officers are legally entitled to shoot escaping prisoners, but expect legal review (not just administrative review) if they do so, which bugs them. That is, they have the legal right to shoot an escaping prisoner, but expect to be charged with a crime if they do so, which they would have to defend.

In comparison, police officers here are not entitled to shoot escaping prisoners just because they are escaping, (but do not expect legal review if they do so, and the administrative review they get will be preceded by counselling and a couple of days to collect their thoughts, because shooting some one is so traumatic, unless you aren’t a policeman)

By “escaping” I include an escaped prisoner who has been sighted: if you see him and he walks away, he is “escaping”.

FWIW, mental patients here traditionally had a statute of limitations on escaping: if you could stay loose for 5 years, you clearly weren’t crazy enough to require incarceration. Now that they get imprisoned instead of institutionalized, they’ve lost that right.

[Shodan]

@Senegoid

OTOH, you could argue that shooting him without adequate ID is only a problem if, after the fact, it turns out to be the wrong guy. But if it turns out to be the right guy to shoot after all, no problem! (This is basically Shodan’s argument.)

Actually my argument is that the police should ID the guy before shooting, which is what happened. I don’t see how the fact that it turns out that the ID was correct affects that argument.

In the Shodan system, the case is decided after the fact according to the desirability of trapping (and harming) the person who got trapped.

Actually the shooting should be, and was, reviewed to be sure that they followed proper procedures, which as far as can be determined, were followed. The reason that there is no problem after the fact is that proper ID was made before the fact. As is entirely correct. I am not sure what you are talking about, but it bears little relation to anything I was talking about.

Cop: “Oh look, there’s the escaped murderer we have been searching for these last three weeks. Pardon me, sir, but could you please halt and put your hands on top of your head!”

asshole runs away

Cop: (running after said asshole): “Police! Freeze!”

asshole continues to run

Cop: “He is about to make it to the tree line and escape!”

Gun: BANG! BANG!

asshole falls down and commences to bleed

Various other police, paramedics, members of the press, officials of the prison, etc.: “Sure enough, that’s the escaped murderer whose pictures and description have been all over the news media for the last three weeks.”

In what way does this differ from a system in which the police ID someone as an escaped murderer before they shoot?

Regards,
Shodan

[Gyrate]

@Procrustus

Shoot a black boy in the park, and people will give the police the benefit of the doubt. Shoot a white escaped convict, and everyone is concerned about police overreach. (not everyone, of course, but still…)

That was my reaction too.

The convict’s shooting was, from the facts I’ve seen, entirely justified. The boy’s shooting was, on the same basis, grossly unjustified.

[Little_Nemo]

@Procrustus

Shoot a black boy in the park, and people will give the police the benefit of the doubt. Shoot a white escaped convict, and everyone is concerned about police overreach. (not everyone, of course, but still…)

I disagree. From what I can see, the opposite is true. There has been no significant protest over the shootings of Sweat and Matt. Certainly nothing that compares to the protests after any of the recent shootings of black people by the police.

[ralph124c]

I hope the guy survives-seems there is evidence of a massive corruption at the prison-…guards selling dope to inmates, etc. Sweat can spill his guts on this.

[puzzlegal]

@Habeed

So, as I asked in another thread, what if he had been serving time for check fraud or wire fraud or some other form of “white collar” crime?

Then I might have more concerns about him being shot. But I’m with Shodan on this one. The guy was obviously a dangerous criminal, was positively id’d by a police officer who attempted a clean arrest, and was fleeing with a decent chance of escape.

Yeah, the cop was right to shoot him. What would a better police action look like?

I get leary about police shooting people. But this is exactly the sort of case that reminds me why they are trained to do that, at least as one option.

[JohnGalt]

Thanks for the good info. I wondered the same thing when I saw Marge Gunderson shoot an escaping suspect (not a convicted felon) in Fargo, although he was in possession of a dangerous woodchipper. I know it’s not a real real story but the Sweat shooting/capture brought this scene to mind immediately.

[Loach]

@JohnGalt

Thanks for the good info. I wondered the same thing when I saw Marge Gunderson shoot an escaping suspect (not a convicted felon) in Fargo, although he was in possession of a dangerous woodchipper. I know it’s not a real real story but the Sweat shooting/capture brought this scene to mind immediately.

What do you mean it wasn’t a real story? It said it was real in the beginning!

[Martin_Hyde]

@Senegoid

I’m sure Canada would have dumped him back on us like a hot potato, although I would sort of expect it would have to go through diplomatic and legal channels and might have taken a long time. I don’t think the Mounties who might have captured him would just carry him back to the border and toss him over. And it might have made quite an international incident if he had made it into Canada and then got shot and killed by LEO’s there.

We have a firm and well established extradition treaty with Canada. Extradition of American fugitives back to the United States is a common occurrence and requires little diplomatic involvement. The only time diplomats would have to get involved is if there are a few possible issues that would make the matter political and out of the ordinary. Off hand a few scenarios would be:

1. Someone escapes charges in America that aren’t crimes in Canada. Generally speaking “boilerplate” (if there is such a thing) extradition treaties only allow extradition for crimes that are actually crimes in both countries. So we wouldn’t extradite someone to Saudi Arabia who was a fugitive on charges of sorcery for example.

2. Someone has fled to Canada on charges that are eligible for the death penalty in the United States.

3. Someone has fled to Canada, committed serious charges there, and the Canadians want to try them in Canadian courts for those charges.

The only one of those that might have arisen in this scenario would’ve been #3, Sweat was an escaped prisoner who stood convicted of murdering a police officer. So #1 would not apply as both of those things are illegal in Canada, and #2 wouldn’t apply because he had already been sentenced to a life term for the murder, and none of his crimes committed on the lam are capital offenses (and New York also has a de facto death penalty moratorium since its statute has been found essentially defective by the New York courts and has never been amended to become operational again.)

@JohnGalt

Thanks for the good info. I wondered the same thing when I saw Marge Gunderson shoot an escaping suspect (not a convicted felon) in Fargo, although he was in possession of a dangerous woodchipper. I know it’s not a real real story but the Sweat shooting/capture brought this scene to mind immediately.

I think Marge would’ve been okay with the legal fleeing felon doctrine. Grimsrud was someone she had reason to believe based on her investigation (at least enough that she could’ve arrested him based on probable cause) had murdered the Minnesota State Police officer outside Brainerd and the two passerby witnesses. She was unaware he had been involved in the kidnapping and murder of Mrs. Lundegaard. She did find him pushing a body into a wood chipper, which is also probable cause that he had committed a third murder. So that’s three murders for which she had probable cause to effect an arrest, so under the doctrine she’d have probable cause to believe he was an imminent threat to the public for committing further violent crimes and murders if allowed to flee. So her shooting him from behind as he fled across the ice likely would’ve been legal had the story been true.

[Voyager]

@Senegoid

I’m sure Canada would have dumped him back on us like a hot potato, although I would sort of expect it would have to go through diplomatic and legal channels and might have taken a long time. I don’t think the Mounties who might have captured him would just carry him back to the border and toss him over. And it might have made quite an international incident if he had made it into Canada and then got shot and killed by LEO’s there.

I’m curious about what conceivable set of circumstances would make his shooting in Canada an international incident. It is conceivable that it would go against their internal procedures, but who in the US with any authority would object?

[Senegoid]

@Voyager

I’m curious about what conceivable set of circumstances would make his shooting in Canada an international incident. It is conceivable that it would go against their internal procedures, but who in the US with any authority would object?

I am working solely on the assumption here that the nations would have an existing pro forma protocol in place, and they would have to deal with doing it that way.

[Sage_Rat]

@Kinthalis

I disagree, the issue IS PRECISELY, that he could have been the wrong guy. You can’t be going with your “gut feeling” when using deadly force.

In billiards and law, luck is officially sanctioned as a mechanism for successful outcomes.

If you are driving drunk, swerve up onto an empty sidewalk, and then are caught by the police, you’ll get a DUI. If you are driving drunk, swerve up onto a full sidewalk, kill someone, and then are caught by the police, you’ll go down for manslaughter.

In reasonable terms, you’re just as likely to have killed someone in either of the two DUI instances. The only reason you got a pass the first time is sheer luck. But, as said, the law rewards luck.

If you wanted to change the legal system to operate alternately to that, we’d have many millions more people in jail.

[Frank]

@Senegoid

I am working solely on the assumption here that the nations would have an existing pro forma protocol in place, and they would have to deal with doing it that way.

You’re actually working solely on ignorance, as far as I can tell. I can’t think of any particular reason that the U.S. government would criticize a Canadian police shooting of a U.S. prison escapee.

[Northern_Piper]

@Loach

Use of force rule are similar but not exactly the same from state to state. I don’t know the exact wording in NY (and more importantly, how they have been interpreted) but here is what the NJ Attorney General’s guidelines are on the subject:

escape of a fleeing suspect

a. whom the officer has probable cause to believe has
committed an offense in which the suspect caused or attempted to cause death or serious bodily harm; and

b. who will pose an imminent danger of death or serious bodily harm should the escape succeed; and

c. when the use of deadly force presents no substantial risk of injury to innocent persons.

A desperate convicted murderer would fall within the rules. An escaped burglar would not.

That is speaking in general terms. I don’t know exactly how it went down in this case.

Out of curiousity, I asked a friend of mine who is a Crown prosecutor if the Canadian use of force rules were similar. His off-the-cuff answer was that he didn’t think the use of deadly force in these circumstances would be justified, because the guy was fleeing from the cop, rather than posing a direct threat to him, and there was no evidence that he was armed. I think the fact that the shooting officer id’d him solely from the description would have also counted against the use of deadly force, because of the possibility of a mis-identification in such short circumstances.