After he stopped, Miller said he got out of his car and was walking “with a purpose” toward her car and she concluded that she was being threatened. So she fired through the window of her car and killed him.
The Des Moines police department described the standard governing the use of lethal force as virtually subjective. Police Sergeant Jason Halifax said “It all has to do with how an officer perceives the situation.” Halifax said, “What they’re feeling at the time. It’s what they’re seeing. It’s what they’re experiencing. There’s not a hard fast this is when you shoot and this is when you don’t.” That seems materially different from the objective test established in Tennessee v. Garner in 1985, that a police officer could used deadly force on a fleeing suspect if the officer had probable cause to believe that the suspect poses significant threat of death or injury to the officer or others. However four years later, in Graham v. Connor, the Court emphasized that the standard is whether the officer’s actions are “objectively reasonable in light of the facts and circumstances confronting them.”
While these decisions must be made in short period of time, the standard is not a subjective one. It is hard to understand how a man merely approaching the vehicle satisfied that test. Some have suggested that the prosecutors undermined the grand jury proceedings since grand juries tend to overwhelmingly follow the lead of prosecutors. The grand jury obviously saw something objectively threatening in a man approach a vehicle in this circumstance.
The shooting again raises questions about the use of lethal force by officers in the United States. A couple years ago, we discussed how police in Iceland killed a man for the first time in history and compared that remarkable record to our own level of police shootings. This week we have another stark contrast out of Norway where police fired only two shots in 2014. They brandished firearms on just 42 occasions in 2014. Their highest rate was only 75 such incidents in 2005 and 2010. In comparison, this week we had a man shot and killed for brandishing a large metal spoon.
Notably, there is a videotape of the shooting but the police are withholding it from the public during their own investigation. It must have been shown to the jury and could shed more light why a grand jury found such a use of lethal force to be justified. It is difficult to see why the videotape continues to be withheld, particularly after the closing of the criminal case.