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Police outside Robinson shooting scene

Madison police stand outside the Williamson Street home where 19-year-old Tony Robinson was fatally shot on March 6.

The legal standards that will guide District Attorney Ismael Ozanne’s decision on whether to criminally charge the Madison police officer who fatally shot Tony Robinson last month tend to lean toward those claiming self-defense, experts in law and policing say.

Those laws were written to avoid limiting people’s options to defend themselves against a potentially deadly threat, said Cecelia Klingele, a professor in the UW-Madison law school. As a result, she said, they tend to be “pretty protective” of those who pull the trigger, whether they are police officers or ordinary citizens.

And if a district attorney believed the officer violated those laws, experts said, the prosecutor would bring charges only if the case could meet a high burden of proof.

A person can use deadly force in self-defense, Klingele said, “if you reasonably believe you are in imminent danger of death or great bodily harm.”

In most cases, Klingele said, “That bar is going to be pretty easy to clear.”

To make his decision, Ozanne will consider myriad factors about the encounter between Robinson and Officer Matt Kenny in a Near East Side apartment home on March 6 to determine if Kenny’s actions were legally protected, or if he should be charged.

Police have said Robinson punched Kenny in the head, knocking him off balance, before Kenny fired. Robinson’s family members and friends have said the shooting took place in a cramped stairway, and that Robinson took hallucinogenic mushrooms on the day he was killed.

Ozanne’s office received reports from the state investigation into the shooting on March 27. He has not said if there is any timetable for when his decision will be announced.

Without knowing the full details of the shooting, many of which have not been made public, Klingele and others stressed they could not say if Ozanne will or won’t charge Kenny.

Robinson’s family members and others questioning the shooting have called for Kenny to face criminal charges, though. They have also criticized the laws pertaining to officer-involved shootings, saying they are used too frequently to justify the killing of unarmed people of color.

‘Reasonable’ is key

When an officer says he used deadly force because he feared for his life, the district attorney must review the facts of the case to determine if that fear was reasonable, said David Schultz, another UW-Madison law professor.

If it was reasonable, the officer had the right to use deadly force in self-defense and won’t be charged.

If his fear was unreasonable, however, a prosecutor could charge the officer with second-degree intentional homicide, Schultz said. Should that happen, he said, the district attorney would have to prove beyond a reasonable doubt that the officer unreasonably believed he was in danger of death or serious injury.

In general, though, Klingele said self-defense statutes “give people a lot of room,” and seek to avoid tying people’s hands in dangerous situations, limiting their ability to stop a serious threat.

“If the belief that you’re in danger is real, we’re going to let you use force,” Klingele said.

Details are crucial

The question of whether an officer’s fear was reasonable is determined by looking at the details of what happened before a shooting.

Everything from the relative heights and weights of the officer and person shot, to the person’s level of aggression — real of perceived — can be used to determine whether an officer’s fear is reasonable, said Lou Hayes, a policing instructor and officer in suburban Chicago.

A district attorney will also consider if the shooting happened in an open or confined space, and where the men were positioned when the shots were fired, Hayes said.

The district attorney will only consider what Kenny or any other officer could have known about the encounter as it happened, Klingele noted, without the benefit of hindsight.

“It’s going to look at the moment the exchange took place and ask, ‘What did the officer know?’ ” she said.

These standards make criminal law “generally generous to policemen” in officer-involved shooting cases, Hayes said.

High bar for charges

If Ozanne does decide to prosecute Kenny for shooting Robinson, he would at minimum need to show probable cause that a crime was committed in order to file charges.

But “in practice, all prosecutors use a higher standard,” Schultz said.

Many will only file charges if they believe they can prove beyond a reasonable doubt that the officer’s actions were criminal — the standard required for a jury to convict, Klingele said. That’s a far higher bar to clear than “probable cause.”

Klingele said that standard is likely the right way for prosecutors to handle cases — after all, she said, if a district attorney charged a case with only probable cause and it went to trial, the prosecutor could wind up trying to convince a jury of something he or she didn’t actually believe.

District attorneys also are only concerned with violations of criminal law, Klingele said, not with whether the officer violated department protocols, or if there is any civil liability for the person’s death.

That means their review might not touch on ways the incident could — or perhaps should —have ended differently.

Madison Police Chief Mike Koval said he didn’t disagree with the assessment of statutes as deferential to people claiming self-defense. But he said there is a “heightened expectation” that police officers be more judicious than ordinary citizens in how they use deadly force because of their training and the other force options available to them.

“It’s a higher standard for a police officer based on training and experience,” Koval said.

Facts critically important

Jerome Flowers, a friend of Robinson’s family who spoke on the relatives’ behalf last week, said the laws for officer-involved shootings are “unjust,” and called for Madison police to adopt “a progressive standard for the use of lethal force,” though he did not specify what those standards would be.

Demonstrators with the Young, Gifted and Black Coalition have called for a United Nations review of the Robinson shooting, saying they don’t trust American law enforcement to fairly evaluate it.

“Tony’s murder was neither reasonable nor necessary,” Flowers said.

But Klingele, Schultz and Hayes all said they cannot determine if Kenny’s actions were legally protected, or if Ozanne should bring charges against him, until there is a full telling of what happened in the moments that preceded the fatal shooting.

“The specific facts of each case are critically important,” Schultz said. “There has to be a thorough investigation of the facts before anyone can opine about the result.”

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Nico Savidge is the higher education reporter for the Wisconsin State Journal.

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