After the forceful arrest of 18-year-old Genele Laird at Madison’s East Towne Mall on June 21 and the fatal police shooting of a 41-year-old mentally ill man named Michael Schumacher on the city’s Near East Side nine days later, at least two local elected officials have publicly called for greater restrictions on when Madison police can use force.
Less force is certainly an option. It would be an even better option if it came with some pretty strong guarantees that less force wouldn’t put police or innocent bystanders at risk of getting hurt or killed.
That’s a big if, in part because state Rep. Chris Taylor, D-Madison, and Ald. Marsha Rummel weren’t interested in detailing their proposals (at least not to me).
The current American standard for whether police are justified in using force — deadly and otherwise — was largely set by the 1989 U.S. Supreme Court ruling Graham v. Connor.
It sanctions the use of force if at the time force was used, it was “objectively reasonable” to think force was necessary to prevent death or serious injury to police or others (not including the suspect). No Monday-morning quarterbacking, in other words.
Under state law, a similar standard applies to us regular folks. It’s called self-defense.
I poked around but couldn’t find anyone who could tell me of a law enforcement agency that has adopted a different use-of-police-force standard.
Robert Rosch, the Hartland police chief and president of the Wisconsin Chiefs of Police Association, said he didn’t know of any in Wisconsin and that “to go with any other standard would probably be unwise, illegal or open an agency up for civil liability.”
“Any agency is free to impose a more demanding standard than what the law otherwise requires, but as far as I know that is rarely done,” said David Schultz, a UW-Madison law professor who teaches criminal law.
And Christa Crawford Thompson, communications officer with the U.S. Department of Homeland Security’s Federal Law Enforcement Training Center, said her agency trains federal, state and local law enforcement agencies to follow the Graham v. Connor standard.
Maybe that only makes sense, because what would a kinder, gentler use-of-force standard look like, anyway? Force only to prevent death (but not bodily harm)? And whose death? Should risk of death to an officer be less reason to use force than risk of death to a bystander?
Perhaps in the midst of a rapidly evolving police call, officers should be required to tabulate likelihoods. Say, if the chance of death or bodily harm is greater than 50 percent, police can use their guns.
Speaking of guns, it seems like training and less lethal tools for subduing dangerous suspects — especially mentally ill suspects — could head off the need to make split-second, deadly force decisions. After all, patients in psychiatric wards can be dangerous, too, but orderlies aren’t allowed to shoot them.
Of course, first responders don’t always have the benefit of knowing the names of who they’re responding to, much less their diagnoses, history, behavior patterns and list of medications.
Madison police have also long used less-lethal weapons such as Tasers, and been trained in de-escalation and the handling of mentally ill suspects. Rummel and Taylor declined to provide me with other training or weapons that might be of use.
Garnering less attention than Laird’s arrest or the fatal Madison police shootings of Schumacher, Tony Robinson in 2015 and Paul Heenan in 2012 was the non-police-shooting of Nathaniel Homestead in December 2014.
According to a criminal complaint, an intoxicated Homestead pulled a gun on Madison police officer Bee Xiong early one morning on Milwaukee Street. Chief Mike Koval said at the time that it would have been a case where deadly force was justified.
Xiong didn’t fire, though, and neither did Homestead.
Madison police spokesman Joel DeSpain told me Xiong has declined to be interviewed in the past, and he declined my request to speak with him last week. But there might be something to learn from Xiong about how to avoid using force when force, under current rules, would have been justified.
Whether that something has to do with the specific circumstances of the call or with Xiong himself, I don’t know. Perhaps Xiong told Homestead to “drop it” some magic number of times. Perhaps he has a sixth sense for whether a suspect plans to open fire.
I also don’t know that whatever it was that kept Homestead from getting shot can be identified, converted into training materials and used by other officers in a way that keeps more people safe, more of the time.
Maybe politicians who make constituent-pleasing calls for less police force should try to find out.