The Third Circuit Court of Appeals issued a somewhat novel and totally unsurprising decision recently in Geraldine Johnson v. City of Philadelphia, in which it denied a civil rights claim on behalf of a man who was killed by a police officer.

In that case the facts were essentially agreed upon. A man named Kenyado Newsuan was standing on a North Philadelphia street corner, naked, in the wee hours of the morning and attracting enough attention to warrant several calls to the police. A solo police officer responded and saw Mr. Newsuan just standing on the street corner, naked. When he saw the officer Mr. Newsuan began walking away. The officer responded by ordering Mr. Newsuan to “come here.” Mr. Newsuan responded by screaming obscenities, walking away from the officer, and then returning. Mr. Newsuan then approached the officer aggressively, and the officer fired a taser into Mr. Newsuan. Mr. Newsuan responded by fighting back, striking the officer in the head, and ultimately grabbing for his holstered gun. The officer responded by shooting Mr. Newsuan three times, killing him.

Mr. Newsuan’s lawyer’s argued that this constituted excessive force because the officer violated department policy in engaging with Mr. Newsuan in the first place. Department policy prohibited individual officers from engaging with obviously disturbed people like Mr. Newsuan. Instead, the policy required an officer to request backup and the help of supervisor and try to keep a safe distance from that person. Mr. Newsuan’s estate argued that he was obviously disturbed enough to be covered by this policy, and the officer should not have engaged with him in the first place. By escalating the situation, the estate blamed the officer for the violent episode that ultimately resulted in Mr. Newsuan’s death.

The Court dismissed the claim because it determined that the officer was constitutionally reasonable in his conduct. Assuming that the officer shouldn’t have engaged with Mr. Newsuan, and that doing so was a constitutional violation, the Court nevertheless concluded that violation wasn’t the cause of Mr. Newsuan’s death. The cause was Mr. Newsuan grabbing for the officer’s gun. Once Mr. Newsuan did that, the officer was allowed to kill him.

The decision is legally defensible, but still unsettling. Police officers seem to have a nasty habit of escalating encounters with mentally ill people, particularly people of color. The police should be trained to try to avoid a violent encounter instead of provoking a disturbed person into committing violence. This decision doesn’t necessarily disagree with those propositions, but it does say that officers who do engage are legally in the clear even when they were unreasonable in starting the whole episode. This is just one more situation where an officer does the wrong thing with a disturbed person and the situation escalates and becomes violent. Obviously the officer was allowed to shoot Mr. Newsuan when he grabbed for his gun, but it never should have gotten to that point.

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