The Policeman's Lot, Cont.

Their story unfolded at the deliberate pace of a bad dream. As Officers Marilyn Stone and Charles Frye waited for the light to change, the driver of a big Lincoln Navigator, one Allison Jones, raced past them. Trying to turn at high speed onto I-85, Jones lost control and crashed into a guard rail. The officers did what officers do. They turned on their siren and lights and rushed to the scene.

Eyewitnesses eventually would testify that Stone and Frye approached the Navigator, rapped on the driver's window, and asked the driver to step outside. Instead of obeying their command, Jones suddenly shifted into reverse in an attempt to run them down — or so it appeared to persons on the scene. Stone leaped out of the way and fired. Frye fired what would prove to be a fatal shot. It is a fair surmise that barely five minutes had elapsed.


The Georgia Bureau of Investigation filed a report. Jones tested positive for cocaine and alcohol. Police recovered a partial "crack" pipe from the driver's floorboard, along with a pink bag commonly used for crack cocaine. It turned out that Jones had a previous conviction for a narcotics violation and was even then on probation.

Eventually Jones' widow sued the Atlanta officers under Section 1983 of the U.S. Code for violation of his civil rights. The officers won a summary judgment in U.S. District Court on their plea of "qualified immunity." Given the circumstances, their use of deadly force was "objectively reasonable." The defense lies at the very essence of law and order. Without it, police would be vulnerable to incessant suit for damages.

Here, the two officers had abundant reason to believe that Jones intended to kill them before they could jump out of the way. They had reacted as experienced officers must react. As the 11th Circuit remarked in a case two years ago, "The determination of reasonableness must be made from the perspective of the officers." There has to be some allowance "for the fact that police officers are often forced to make split-second judgments in circumstances that are tense, uncertain, and rapidly evolving ..."

Remarkably, a three-judge panel of this same 11th Circuit last August summarily reversed the District Court's reasoned opinion. The appellate judges said a reasonable jury might believe that: Stone and Frye fired upon a vehicle "containing an accident victim who was neither threatening the officers with harm nor a suspect in a crime (other than a possible misdemeanor traffic violation)." On the other hand, said the panel, if Frye and Stone could prove they were acting in self-defense, their use of force "was not unreasonable and did not violate Jones' constitutional rights." It would be up to a trial court to decide.

In the dangerous world of criminal law enforcement, how much force is too much force? In recent years the Supreme Court has twice grappled with the question. The not-very-satisfactory answer appears to be, "It depends."

In June 2001, the high court found in favor of Donald Saucier, a military police officer at the Presidio in San Francisco. At a dedicatory ceremony in 1994, an ardent advocate of animal rights, Elliot Katz, had attempted to stage a modest demonstration. Vice President Al Gore was the speaker. In an excess of protective zeal, the cops gently roughed up the demonstrator. He sued. After years of lower court proceedings, the Supremes ruled 8-1 in favor of the cops. An officer's "gratuitous shove," said Justice Anthony Kennedy, was somewhere on the "hazy border between excessive and acceptable force." In a concurring opinion, Justice Ruth Bader Ginsburg said courts must take into account "the particular circumstances confronting a defendant officer."

Late in 2004, the court sided again with a police officer, this time with Rochelle Brosseau in Puyallup, Wash. Like Marilyn Stone in Georgia, she used her weapon under the heart-stopping pressure of a potentially fatal moment.

A policeman's lot is often not a happy one. In the case at hand, the 11th Circuit has compounded the burden upon two officers who did what they were trained to do. Reverse!

(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)

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