Forgive me for bringing up an old issue, but the New York Times had an article in yesterday’s issue that reminded me of something that has been irritating me since I first heard about. When David Sweat, one of the two men who escaped from a New York prison more than a year ago, was captured, he was nearly killed by an officer who shot him in the back as he was running away, unarmed. Not only does this appear to be a clear civil rights violation, but absolutely no one seems to care. But that is problematic for a number of reasons.

Mr. Sweat was serving a prison sentence at the Clinton Correctional Facility in Upstate New York when he and another inmate, Richard Matt, escaped in June 2015. One of the things motivating the men was reportedly their own mistreatment by prison officials. But no matter why they escaped, they did, and it took three weeks for law enforcement to catch up with them. Mr. Matt was killed by a federal agent after he pointed a shotgun at the officer.

The Times explained what happened with Mr. Sweat:

Two days later, Mr. Sweat was walking on a rural road just a mile and a half from the Canadian border when a sergeant in a State Police car approached him. Mr. Sweat believed the sergeant was confused because Mr. Sweat had shaved the night before as part of his plan for not looking like a haggard convict on the run.

Mr. Sweat started to cross a field of alfalfa, heading for the tree line on the opposite side.

The sergeant tried to call Mr. Sweat back to the road, saying, “Come here.” But Mr. Sweat responded with, “No, I’m good,” and kept walking.

He started moving faster. The sergeant swore at him.

“He started running behind me,” Mr. Sweat recalled. “I took off. The next thing he says: ‘I’m going to shoot you. If you don’t stop, I’m going to shoot you.’ I said: ‘I ain’t got no weapons. I don’t have no weapons.’”

Mr. Sweat said he held his hands up so the trooper could see he was unarmed, but he kept running. The tree line got closer. He dropped the bag he was carrying. The sergeant got down on one knee, carefully set up his shot and fired.

Mr. Sweat survived, and was given an extra sentence on top of his pre-existing life term. The officer who shot him was hailed as a “hero.” Everyone felt good about how things were resolved.

But, assuming Mr. Sweat’s description of how he was arrested was accurate (I don’t know because I wasn’t there, but the police don’t seem to have a different account), the officer who shot him was in the wrong. This upsets me.

The Fourth Amendment to the United States constitution prevents police officers from shooting someone just so they don’t run away. As the Supreme Court said:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead.

Tennessee v. Garner, 471 U.S. 1, 11 (1985).

The Second Circuit, which governs where this happened, has further explained that this rule only gives way if “the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others,” but this inquiry “depends only upon the officer’s knowledge of circumstances immediately prior to and at the moment that he made the split-second decision to employ deadly force.” Cowan ex rel. Estate of Cooper v. Breen, 352 F.3d 756, 762 (2d Cir. 2003) (internal citations and quotation marks omitted).

Based on what Mr. Sweat described, I fail to see how the shooting was constitutionally permissible. He announced he was unarmed, he appeared to be unarmed, and simply ran away from the officer. The officer then took careful aim and tried to kill him. That’s not okay.

That bothers me a lot, and bothers me even more because it seems like no one else cares. I haven’t seen anyone stand up for Mr. Sweat on this one. Maybe that’s because he was a convict, and someone who was convicted of murder. He also was someone who escaped from prison, and scared the hell out of a ton of people in Upstate New York. His partner also seemed like a homicidal maniac, who actually did try to hurt a law enforcement officer. He doesn’t really make for a sympathetic plaintiff.

But, in my opinion, we should care about this precisely because he is an unlikable character. Civil rights are supposed to be for all of us, equally. The whole idea of justice is about having one set of rules for everyone, even criminals. And this was what the Court in Garner was talking about. We have come together as a society and agreed that the police can’t kill people just because they are running away.

Pretending like shooting Mr. Sweat was okay, though, presents two sets of rules. We generally agree that police shouldn’t shoot someone in the back just for running away. But then we learn that the person who was running was a bad guy. Then we think it’s okay. But that’s not the rule we settled on. Rights shouldn’t change depending on what kind of a person someone is. Otherwise they don’t mean anything.

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