Is There a Right of Self-Defense Against Police?

Print More

Photo by Keoki Seu via Flickr

On March 18, 2018, in Sacramento, Stephon Clark was shot and killed by police officers who thought he was holding a gun and aiming it at them.

At least, that’s what the police officers say they saw. One also thought he saw a muzzle flash from the gun, indicating Clark was already shooting at them. The other officer only thought he saw light reflected off the metal of the gun.

As it turned out, Clark was only holding a cellphone. Light could have reflected off the phone, or Clark could have been taking a photo of the officers (as people who think the police are harassing them often do) and they saw the flash.

It was dark and the police are taught to shoot first when they believe their lives, or the lives of their fellow officers, are in danger. They at least thought they were pursuing a violent felon who had already broken several car windows and a sliding glass door on a home.

In any case, the police were not charged with a crime. So, is shooting someone because you think they are pointing a gun at you legal?

What if that someone is a police officer? If someone breaks into your home without warning, is it legal to shoot that person if you don’t know he  or she is a police officer?

What if Stephon Clark had been holding a gun? If he had shot them preemptively because he thought they would shoot him on sight when they saw he had a gun, would he have been justified? What if the police had broken into Clark’s home?

Would he have been acquitted? Should he?

The law is one thing, reality another. While there is some legal theory that a using lethal force in defense of a home would have been justified, the courts and the police tend to overlook the errors of law enforcement more generously than those of the general citizenry.

Here are a few examples, all involving no-knock warrants looking for armed and dangerous drug dealers but which found nothing to justify police action:

  • On Dec. 19, 2013, Texan Henry Goedrich Magee shot and killed an officer entering his home with a no-knock warrant. He said he thought he was being burglarized and the grand jury decided that was a reasonable assumption. They decided against indicting him, on the shooting, anyway, though Magee did spend 18 months in jail on a marijuana charge.
  • On the other hand, in a similar case, Marvin Guy of Texas is still awaiting trial more than four years after a no-knock raid resulted in an officer’s death.
  • Cory Maye of Mississippi spent 10 years on death row for killing a police officer during a drug raid on his home before a plea deal reduced the charge to manslaughter and time served in 2014. Maye had claimed he was defending his young daughter against what he believed was an attack on his home.
  • Ray Rosas – who wasn’t even the target of the raid and didn’t kill the police officers he shot – spent two years in jail, mostly in solitary confinement, awaiting trial before he was acquitted. His elderly mother was removed from his care and he lost his family home.

So, yes, sometimes you can shoot a police officer in self-defense – at least if it’s a no-knock raid and you don’t know the intruder is a police officer – but that doesn’t mean you will get off scot-free.

Stephon Clark’s case wasn’t a no-knock situation. He was out in the open. Still, he didn’t have the gun police thought he did. There were other factors, however, that may have led to the officers not facing charges.

Clark was acting peculiarly.

What the officers couldn’t have known at the time is that Stephon Clark had multiple drugs in his system – alcohol, marijuana, opioids, benzodiazepine, and an over-the-counter allergy medicine – and his blood alcohol concentration (BAC) was 0.091, higher than the 0.08 drunk driving standard.

Some have suggested he was committing suicide by cop. At a press conference, Sacramento district attorney Anne Marie Schubert implied that Clark was suicidal. At the very least, he may have been depressed. Evidence included:

  • His browser search history revealed he was looking up ways to commit suicide with drugs;
  • His girlfriend/fiancé said he struck her and now was threatening him with jail for violating parole;
  • A text he sent to his girlfriend showed a photograph of a handful of pills (Xanax), with the message, “Let’s fix our family or I’m taking all of these.”

But, as has been pointed out by some commentators, we don’t know if the police had any drugs in their system or their mental state. There’s no indication that their blood was tested for drugs, or that their phones or browsing histories were checked for incriminating evidence.

And they should be. Police officers are two or three times more likely to abuse drugs than the population as a whole.

A quarter of police officers are estimated to have alcohol or drug abuse problems. We should be doing more to help them into addiction rehab before their self-medication leads to avoidable civilian or police deaths, and that starts with knowledge.

Aside from the risks associated with performing their duties, there is the risk of suicide. According to Blue HELP, in 2018 more police officers took their own lives than were lost in the line of duty for at least the third year in a row.

Another police officer involved in a shooting was Amber Guyger, who was off-duty when she shot and killed Botham Jean in his own apartment, Sept. 6, 2018, in Dallas. In a way, this was a no-knock situation, but no warrant or raid was involved.

Guyger had just gotten off a 14- or 15- hour shift (she wanted the overtime) when she attempted to enter Jean’s apartment, which was one floor above her own. She claims she thought it was her apartment and that Jean was an intruder. She also says she was tired – understandable after a long shift. But other aspects of her story have changed:

  • Guyger at first said the apartment door was closed, then later she claimed it had been open a little, ajar at least. Neighbors have said that the apartment doors close automatically, so it couldn’t have been ajar.
  • Guyger says she put her key in the lock, pushed, and the door opened. Lawyers for Jean’s family claim they have a witness who heard her pounding on the door demanding to be let in.
  • Guyger claims she thought it was her apartment, but when she called 911 she had to check the apartment door to give them the number. (If she had just realized she was in the wrong apartment, this would be understandable.)

Guyger has been indicted and was fired by the Dallas Police Department. The trial is set to begin in September 2019.

That Guyger was off-duty at the time of the shooting may explain why her treatment differed from that of Stephon Clark’s shooters. Police Chief Renee Hall said at a press conference that “we have ceased handling it under our normal officer-involved shooting protocol.”

Even so, she is receiving much better treatment than civilians who shoot police officers. Guyger at least is out on bail.

Although Guyger’s blood was drawn for a toxicology report, the tests either haven’t been completed or have not been released more than nine months later. Stephon Clark’s toxicology report was revealed after less than six weeks. It would be cynical to suggest that if Guyger’s report was clean, it would have been released already.

Some of Guyger’s behavior suggests possible intoxication, mental confusion or poor judgment. She might even be suffering from post-traumatic stress disorder (she shot a suspect in 2017).

Allegedly, Guyger had complained about noise from Jean’s apartment before. Maybe she went there to say she needed some sleep and to please keep the noise to a minimum, and it escalated. Maybe she held a grudge and was in a bad mood. (Her Pinterest account was said to include violent braggadocio.)

Police have a dangerous and stressful job. It’s a job that most citizens know needs doing. That doesn’t excuse police officers who abuse their authority or are reckless or careless.

It doesn’t excuse institutional racism either. It may only be circumstantial, but with the exception of Magee, all the civilians in these cases are persons of color.

Finally, it doesn’t excuse so violent and fallible a technique as no-knock raids. There are more than 20,000 no-knock raids every year – as many as 50,000 in 2004 – but only about 25 percent turn up the suspected drugs.

The New York Times’ own inventory found no-knock raids resulted in an increase in officer deaths (eight instead of five) while civilian deaths decreased (31 instead of 47) over knock-and-announce.

Stephen Bitsoli

Stephen Bitsoli

The U.S. Constitution made the right to bear arms a guaranteed right second only to freedom of speech.

Police shouldn’t give the law-abiding citizens they are sworn to protect cause to exercise this right against them.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction treatment, politics, history, and related matters for several blogs. He welcomes comments from readers.