‘Awful but Lawful’

This standard allows callous, wanton behavior, the reckless and willful taking of life. Any action can be excused as a reasonable response to fear.

As the American Bar Association pointed out in February of 2020, the awful but lawful concept creates a “high burden for prosecution of bad police actions.” The group was summarizing the sentiments of a panel of legal experts at an A.B.A. meeting.

One person on the panel, Ronald A. Norwood, a defense lawyer in St. Louis who has served as counsel to the St. Louis Metropolitan Police Department, put it this way: “Officials should not be held liable for bad guesses.”

But these “bad guesses” are not benign. In many cases, they result in someone being killed.

As Kalfani Ture, an assistant professor of criminal justice at Quinnipiac University in Connecticut and a former police officer in the Atlanta metropolitan area, told reporters in June about the killing by the police of Rayshard Brooks in Atlanta, “Would I have shot Rayshard Brooks? My answer is no.’’

But, he continued: “It’s a questionable use of force, but there are many officers who may find this a lawful use of force. So, it’s one of those things we call in law enforcement ‘lawful but awful,’ meaning that the officer could have taken alternative action that did not result in the civilian’s death.’’

Deadly use of force by police officers is highly discretionary, but these police officers are humans who bring to their jobs biases, both conscious and subconscious. Where one person may be shown patience and leniency, another will be rewarded with violence and harm. And, often, all of it is legal.

We have a legal system that has shirked its judicial responsibility, allowing for extrajudicial killings without consequence — curbside capital sentences. In this system it is too often the case that police officers are judge, jury and executioner.

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