Law & Disorder: Shoot first

Ask questions later

By A.J. Wagner

Justice belongs to God; men only have the law. Justice is perfect, but the law can only be careful. – Juror No. 9

The above quote came from a journalist who sat on a New York jury with an itinerant preacher. After four days of deliberation and angst on an assault case, the otherwise quiet preacher made the above statement, after which the jury decided to find the defendant not guilty and put the matter into God’s hands.

I thought of this quote as I read of the many individuals who proclaimed justice was served or not served when a Greene County special grand jury failed to indict a Beavercreek officer for shooting John Crawford as he stood inside a Walmart with a pellet gun in hand. From my years as a judge, I know our justice system has many flaws which do not result in justice.

John Crawford was breaking no laws at the time he was killed. His death was not just, but was the law, at least, careful?

There is a case currently pending before the Ohio Supreme Court, Ohio v. White, that will define the law in Ohio on police use of force once it is decided. This case has been briefed and argued and a decision could be forthcoming at any time. In the meantime, Ohio must rely on direction from the most important United States Supreme Court case which has set forth the law on police use of deadly force, Tennessee v. Garner.

However, we can look at the White decision in the Lucas County Court of Appeals, the decision which is under appeal to the Supreme Court, for some guidance as to the state of law as it is today in Ohio while we await the wisdom of Ohio’s Supremes.

The Appeals Court said in part:

“All claims that law enforcement officers have used excessive force – deadly or not – in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard. For both levels of force, ‘reasonableness’ is generally to be gauged from ‘a totality of the circumstances’ then confronting the officer.

“For this standard (deadly force), there are two special circumstances or conditions that limit an officer’s authority to use gunfire to affect a seizure. But if kept within those limits, the use of deadly force will be deemed reasonable. The first circumstance, and the one claimed here, is suspect conduct that threatens the officer at a level of serious physical harm or death. It requires asking whether the officer could reasonably have had ‘probable cause to believe that the suspect posed a threat of serious physical harm, either to the officer or to others.’

“The second circumstance for deadly force exists where ‘there is probable cause to believe that [the suspect] has committed a crime involving the infliction or threatened infliction of serious physical harm.’ Often denoted as the ‘escape’ circumstance, this is broader than it first appears. It refers to a suspect whose immediate past criminal acts or threats have demonstrated a disregard for human life. This person in committing a violent felony, has seriously injured or killed others, or has threatened to do so, and will continue unless stopped or he is attempting to flee the scene of that crime.

“A serious and imminent threat to the officer’s safety will permit him to respond with gunfire. Thus, reasonable threat perception is the ‘minimum requirement’ before deadly force may be used. Whether the officer reasonably perceived a threat must be assessed objectively. The focus is specifically on the moment he used his weapon and in the moments directly preceding it.

“In deadly-force cases involving both armed and unarmed suspects, courts have accepted the action-reaction principle on facts justifying the officer’s anticipatory use of his weapon to protect himself. In other words, a nascent threat can be sufficient; it need not materialize to the point of harm. Use of deadly force is presumptively reasonable when the officer could reasonably have interpreted the suspect’s movement as ‘reaching for a weapon.’ The officer does not have to wait until a gun is pointed before acting.

“The Fourth Amendment does not require police officers to wait until a suspect shoots to confirm that a serious threat of harm exists. Officers need not be absolutely sure [of] the suspect’s intent to cause them harm – the Constitution does not require that certitude precede the act of self-protection. Rather, it is the perceived threat of attack by a suspect, apart from the actual attack, to which the officer may respond preemptively.”

Summing up: if an officer is scared and the jury thinks his fright is reasonable, he can shoot. There is no requirement to be careful. Should there be?

Disclaimer: The content herein is for entertainment and information only. Do not use this as a legal consultation. Every situation has different nuances that can affect the outcome and laws change without notice. If you’re in a situation that calls for legal advice, get a lawyer. You represent yourself at your own risk. The author, the Dayton City Paper and its affiliates shall have no liability stemming from your use of the information contained herein. 


A.J. Wagner is an attorney
with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth St. in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at 937.223.5200 or at

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A.J. Wagner is an attorney with the law firm of Flanagan, Lieberman, Hoffman and Swaim at 15 W. Fourth Street in Dayton. A.J. and his firm would be glad to help you with all of your legal needs. You can reach A.J. at (937) 223-5200 or at

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