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Incentive to Kill

Thoughts on the Acquittal of Philip Brailsford

After every widely publicized shooting of a civilian by a police officer, someone asks why de-escalation techniques aren’t used more. Why is lethal force seemingly the go-to? An article published by ProPublica on November 29th offers one frightening explanation: it could cost the officer his or her career.

R.J. Williams was a 23-year-old black man, father of one and sibling to 6, and a resident of the town of Weirton, West Virginia. On May 6, 2016, he wanted to die. That’s what his girlfriend told the 911 operator when she called: that Williams, the father of her child, was drunk, carrying an unloaded gun, and hoping to goad a police officer into shooting him. The call went out to Weirton Police. A 25-year-old Marine veteran and state police academy graduate, probationary patrolman Stephen Mader, was nearby and responded.

The dispatcher advised Mader to be on the lookout for a weapon; she did not tell Mader that the gun was unloaded or about the subject’s plan for suicide-by-cop. Nevertheless, when Mader arrived on the scene, he assessed the situation and determined that Williams was not a threat. He saw the gun in Williams’ hand, but it was pointed at the ground. The plainly distraught man repeatedly implored “just shoot me” and refused Mader’s commands to put the gun down. Officer Mader didn’t want to shoot him, and he told him so.

Within 2 to 3 minutes, as Mader continued to try and soothe the man and de-escalate the situation, two other Weirton PD officers skidded onto the scene, nearly crashing their cruisers into each other in their excitement. Within ten seconds of their arrival, Williams was shot in the head and killed. The officer who shot him did so when Williams moved toward the officers, gun raised and pointed and swinging alternately between them. The officer who killed him fired four shots and missed Williams with the first three.

The ProPublica article gives a very in-depth account of what happened in the aftermath, but the long and short of it was this: Mader’s department and fellow officers turned on him for not firing his gun. He was ostracized, harassed by the officer who did shoot, called a coward, and ultimately terminated from his employment for the “negligence” of not shooting the suspect.

Mader himself will not refute that, under the circumstances, the officer who did shoot Williams acted justly. Just inside the house was a woman and her small child. The man was advancing toward officers, gun aimed and appearing at the ready. At that point, they had no idea that the gun was empty-the 911 operator didn’t tell them that. And they didn’t know of Williams’ intent to die, though Mader had surmised as much. Mader refused to provide a statement in support of Williams’ family’s view that the shooting was unjustified for the lawsuit they intended to file.

But Mader believed that his firing from the Department was wrong; he didn’t think an officer should be punished for refusing to take a life. After consulting with somewhere around 20 lawyers unwilling to take his case, Mader found some in Pittsburgh who would.

The problem with Mader’s case was that he was a probationary-status officer not covered by civil service protections. The city could fire him for any reason or no reason. And indeed, city officials claimed the firing was not because of Mader’s decision not to shoot but because of other, minor incidents during his stint with the Department-an explanation that doesn’t square with the termination letter he received which explicitly cited the shooting incident

An honest consideration of the facts can leave one torn. On the one hand, Mader did what so many implore: he analyzed the situation, recognized a distraught man, and made a decision to try to end the crisis without bloodshed. He did what we ask of officers: he tried to de-escalate. The decision seems wise in the 20/20 vision of hindsight, knowing the gun was unloaded.

But imagine it wasn’t. Imagine the gun was loaded when Williams pointed it at the officers. Imagine he pulled the trigger, and one or more of those officers did not make it home that night, because Mader failed to stop the threat when he could have. Now, imagine being a cop assigned to work with Mader after that, knowing of his perceived failure to act to protect his fellow officers. Right or wrong, it is not hard to understand the effect.

But who was Mader there to protect? Perhaps it was his coworkers to whom he owed that duty. After all, Williams was the one pointing the gun and creating the perceived danger. Then there was the woman and her child inside the house, and the many other people in the residential neighborhood. They deserved protection, too. Perhaps some would opine that, as a police officer, it was the troubled citizen before him to whom Mader was obligated. This would likely be unpersuasive to grieving families of fallen officers, but it is an idea not completely without merit.

In fact, all of the above is true, and that’s what makes this story so gut-wrenching and hard to reconcile. Of course, we know now that Mader’s instinct that Williams was not a threat was correct. But what if it wasn’t?

But what if the second two officers, rather than flying onto the scene and leaping out to engage the suspect, had hung back and assessed the situation? Before they arrived, Mader had the scene calm; he had taken cover behind his vehicle with his weapon aimed at Williams while he tried to persuade the distraught man to drop the gun. It seems the better practice would be to ascertain whether Mader had a handle on things before rushing to confront the suspect. Had the better practice been followed, maybe Williams would be alive, and Mader would still be an officer.

It often seems that police officers escape consequences for shooting deaths. Never mind criminal charges; they are rarely held to account civilly, either. And that is due in large part to the wide protection provided by the doctrine of qualified immunity. If it seems that qualified immunity holds officers harmless when they make poor decisions, even if they result in a citizen’s death, that is by design. In  Maciariello v. Sumner, a case out of Maryland, the Fourth Circuit Court of Appeals explained the rationale for qualified immunity: to protect officers from the consequences of “bad guesses in gray areas”, unless the officers have “transgressed bright lines” of the law. In other words, if an officer arrives on the scene, makes an incorrect guess as to what is going on, and acts on that guess in a way that causes harm, he is not to be held accountable for the consequences of his actions. The law protects “all but the plainly incompetent” or those who violate “clearly established rights”, and rarely is that standard deemed met.

Qualified immunity is also used as the basis for wrongful termination cases if an officer loses his or her job for making a “bad guess”. The officer who killed Williams was supported by his department and in no danger of losing his position, but if he had been, qualified immunity would have protected his job. Mader had no protection, according to the city and according to the most likely interpretation of West Virginia law, because of his probationary status. But given the hostility he faced from his coworkers after the Williams incident, one may speculate whether qualified immunity would have protected him from losing his job.

Ultimately, the City of Weirton paid Stephen Mader $175,000 in a settlement agreement. Had the case made it to court, and had Mader prevailed, it would have set a new precedent. Law enforcement officers are already broadly protected from the consequences of snap decisions to shoot; perhaps Mader’s case would have protected those who choose not to kill.

Instead, the precedent we live with is that the only correct way to handle a situation like the one these officers encountered is with lethal force. Don’t bother with an attempt to de-escalate; it could mean your job. Better err on the side of death.


Senior Editor
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Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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60 thoughts on “Incentive to Kill

Since Dec 12, 2018 @ 0:03:

  1. It is remarkable that anybody could come way from this case with anything but disdain for how policing currently works, and yet it is not at all difficult to imagine somebody siding with the police department and not the officer. Which is how the problem perpetuates itself.

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      • I’m not sure I follow, but if the idea is that the system will not meaningfully change until its support does, I agree. As long as the police continue abusing the right people – the one that moderate whites can look at and say, “Well, he wasn’t actually armed, but I can understand being concerned about him having maybe been armed…” – then the system will not change. In other words, as long as officers matter more than their victims, the system is set concrete. A case like this one, which inverts what we usually see, lays bare the problem.

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        • Well, the connection is this: imagine a situation where a police officer does something absolutely egregious.

          Like, the police union defends not only the officer, but the officer having done the egregious thing. Here are a couple of examples from 2018.

          If police unions were merely arguing for more pay, more vacation, more sick time, they’d be easy to defend. Heck, only libertarian cranks would oppose them.

          The problem is that when some people look at the corrupt system and see one of the institutions *DEVOTED* to protecting the most toxic of the police officers as part of the problem, they see the word “union” and immediately say “but unions are good!” and don’t see how one of the institutions devoted to protecting the most toxic of the police officers could possibly be part of the problem.

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            • That’s the beauty of it! They’re not!

              There is no attack surface of the police that isn’t covered by 50%+1 of the population.

              Saying “maybe we shouldn’t have unions defend these guys when they’ll defend even stuff like Laquan McDonald’s shooting” gets responses talking about the importance of unions.

              As if the union was merely defending more pay, more vacation, and more sick time.

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              • The argument you’re presenting appears to be that “were it not for unions, police abuses would be reduced significantly.”

                This argument never gets fleshed out with any steps leading from “Non union cops” to “Less abuse”.
                Its like one of those internet memes where step 2 is “underpants gnomes” or something.

                This is critical because the overall premise is contradicted by other arguments, that are a lot more persuasive.

                For example the myriad of examples and writings where the culture of policing is described as one of silence and complicity in abuse;

                A culture that sees itself as an embattled occupying force, and the citizens hostile natives;

                A culture that still is permeated by racism and a callous disregard for the people they ostensibly protect.

                These arguments, that all point to a pervasive culture, are all very persuasive!

                So the idea that “if we could only fire the abusive cops” runs counter to these; Even if the police department could fire them, what evidence is there to suggest that they would?

                Isn’t it just as likely, that the culture of abuse would just fire the good cops and retain the bad? Like they did here?

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            • I am dubious that many of the people in America who currently believe in the goodness of unions are doubling as police defenders.

              Correct. Reflexive defenders of cops are generally anti-union while reflexive critics of cops are generally pro-union. (Why? because politics is a mind killer? …) Jaybird is highlighting the role unions play in creating and maintaining a culture which supports outcomes liberal critics jump up and down about, but – and this is the point – which those critics refuse to admit. I’m not sure why this banal observation about police unions is such a contentious point with liberals here at the Ole OT.

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            • Unions are a red herring. As shown by every other union on earth, they simply couldn’t continue to shield this sort of behavior unless they had a substantial chunk of the population behind them.

              And they do. There’s a very large segment of the population that feels this sort of thing is how it should be.

              Which, of course, traces back to everyone’s favorite topic: The Civil War, Jim Crow, and the Civil Rights era.

              Cops get away with shooting people not because of unions — but because for over a century, an unspoken part of the job of “police officer” was to put the boot in (and if they died, can’t make an omelette, etc, etc) the people whom “society” (WASPs, primarily) thought needed a reminder of their place.

              Uppity minorities. Hippies. Leftist protesters. The police have been wielded as a tool against those threatening the ‘social order’ (conservatve, white, anglo-saxon) for 200 years now. Hammering down the foolish nails that persist in protesting the wrong things, being the wrong color in tthe wrong place, or otherwise not knowing their place.

              And there is still a large section of society that views that as part of the police’s job. And policing culture has that particular concept embedded in it.

              Police unions couldn’t do crap if there wasn’t a lot of people applauding cops putting the boots in, to make certain people “learn their place”.

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              • Lets not neglect to mention a famous law professor and blogger who was so incensed by protesters blocking traffic, that he wrote a post urging the drivers to run them down. And at least a couple cities considered laws to allow that very thing.

                Its bad barrels of apples like these that give the good ones a bad name.

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              • Unions are a red herring.

                This. Blaming unions for this problem strikes me as akin to the folks that rail about defense attorneys “getting criminals off” on “technicalities”. All a defense attorney can do is present an argument before a judge and/or jury. It’s the judge that issues a ruling or the jury that votes “not guilty”.

                This is a more general societal problem that some people want to blame on unions because… well, they just don’t much like unions in the first place.

                If you want to place blame I would suggest the DA’s that decline to prosecute, the grand juries that decline to indict, and, in the rare cases that make it to trial, the juries that vote to acquit.

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                • This. Blaming unions for this problem strikes me as akin to…

                  In Jaybird’s defense, he hasn’t blamed unions for the problem of cop violence and corruption and so on, he blames unions for *the role the union plays* in protecting cops who do engage in violence and corruption and so on.

                  Again, I really don’t understand why liberals find this observation so contentious.

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                    • Seems like an easy enough problem to solve: the union could, certainly should, stop protecting the bad apples, aggressively try to weed them out instead. Why doesn’t the union do that? Answering that question is when the knives come out.

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                          • I agree with you as far “easy to defend” goes. I’m just unconvinced that the stuff the unions are doing beyond pay, benefits, and retirement are actually a significant component of the problem. They can — and do! — make it more difficult to fire bad cops and they can — and do! — often provide bad cops with legal counsel and they can – and do! — lobby for laws that protect bad cops. But ultimately it’s judges, juries, grand juries, DA’s, and legislators that are refusing to indict, prosecute, convict, and sentence bad cops. Unions simply don’t have that kind of power.

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                            • I’m just unconvinced that the stuff the unions are doing beyond pay, benefits, and retirement are actually a significant component of the problem.

                              You say that as if *other* unions have a stellar reputation for rooting out corruption rather than institutionalizing it.

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                                • There are many layers to the onion of what ails law enforcement. The way the unions operate is one of those layers. Laws passed by legislatures, administrative decisions, various precedents and judicial doctrines, socio-economic problems, inequality, the legacy of slavery and Jim Crow, the military-industrial-cop complex, glorification of violence in our society, and just plain old punitive law and order streaks in American culture are all contributing factors. Any one of them alone probably doesn’t get us here but altogether they create a serious public policy problem.

                                  Its hard because meaningful change involves goring a lot of sacred cows, and acting out of principle even when it isn’t politically expedient.

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                                • Seems to me there are two problems here running in tandem and feeding off each other: convictions and dismissals. We can blame the courts for bad cops not receiving convictions, but we should blame the union for preventing bad cops from being fired.

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                              • Some cities such as NY have changed the way they police in positive ways while still having abrasive jerkwad unions. Other cities have retrained cops. Unions are not the primary cause of problems with cops nor is getting rid of them close to the solution.

                                As the Scott Walker admin showed even if you try to kill all public unions, cuz unions be the devil, cop ( and fireman) unions will be safe because a loud segment of the population loooooves themselves some cops. So getting rid of cop union seems impossible even for union haters.

                                But even if you got rid of unions bad cops would still have defense attorneys. Then they would clone the NRA, saw the right leg off the R and have clone Dana Loesch spewing out aggressive pro-cop stuff. The people who eat that up would still be all in on aggressive shooty cops. Then there are the prosecutors who tend to be pro-cop.

                                So cops unions are a part of the problem but it’s the aggressive cops lovers and their allies who are the key problem. Getting rid of unions won’t change them and they will still support the worst cops. And again PD’s can be changed even if they have unions. So harping on unions is a thing for salons like here but it doesn’t retrain or refocus cops nor does it get at their most powerful support.

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                                  • Aaaannnd, the most aggressive cop lovers are members of the union.

                                    If you think that, you’re living a sheltered life.

                                    I know people want simple solutions, but “OMG, it’s the unions!” isn’t gonna fix it because that’s not the problem. It’s a huge chunk of Americans who cheer on cops doing this, because they’re “being tough on crime” and by “tough on crime” they really mean “Putting the boot in to the wrong sort“.

                                    We’re a society that has a significant percentage of the population feels that the only problem with torturing “bad guys” is that we don’t go far enough.

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                                    • It shouldn’t, but maybe it needs to be pointed out that this very blog post is about a good cop who was summarily fired…because he lacked union protection.

                                      The idea that in a nonunion environment, the hammer of summary dismissal will magically fall upon only bad cops seems ludicrous.

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                                      • This may be of interest. A paper on Collective Bargaining and Police Misconduct.

                                        – We then analyze the impact of collective bargaining rights, using police departments, which were unaffected by Williams, as a control group for sheriffs’ offices. Our results imply that collective bargaining rights led to about a 45% increase in violent incidents. We also find some evidence suggesting that collective bargaining rights led to decreased racial and ethnic diversity among new officer hires.

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                                        • I’m not able to assess the study myself, so for now I just have to put it in the pile marked “Smart Guy Says X”.

                                          X might be right, after it is verified and corroborated by a bunch of other smart guys, but I don’t know that yet.

                                          What I do know is such a claim, that unionization is a strong driver (45%- Wow!) runs counter to what we are seeing, which as I remarked elsewhere, is the overall culture of policing, racial bigotry, and the culture of society.

                                          But hey, we learn new things every day.

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                                          • The power that police Unions have secured for themselves and their membership, both contractually, and legislatively (re: Officers Bill of Rights) is, AFAIK, unique among all other labor Unions, both public and private. No other Union conducts PR campaigns on behalf of members who are suspected of criminal or violent misconduct. No other Union provide robust legal representation for members facing legal action brought by outside parties (such as DAs, or civil misconduct suits brought by citizens). No other Union successfully lobbies politicians for special legal privileges for their membership.

                                            It’s understandable that such power has a corrupting influence over the membership.

                                            That said, if we were to somehow[1] strip such power away from the Union, and legally force it to only concern itself with the things every other public sector Union is concerned with, there would still be organizations that would run PR for officers, and lobby for them, and provide legal representation, and the Unions would, at the very least, pay them money to do such things.

                                            But I can’t help but wonder if officially segregating such things wouldn’t reduce some of the power wielded, and help get a better foothold for reform efforts.

                                            [1] I honestly don’t know if we legally can without running afoul of the 1A. The only reason other Unions don’t is because for some reason the public would not stand for the UAW providing PR and legal representation to a member who beat his wife or killed someone in a dispute.

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                  • Again, I really don’t understand why liberals find this observation so contentious.

                    Because I’ve yet to see people who make that assertion/observation actually show their work. This seems like a question that’s approachable, at least in principle, through the scientific method. Not all cop shops have unions, correct? I mean, I assume all the big ones do, but I have to imagine that there’s a lot of small and medium size departments that don’t. And if that’s the case one ought to be able to statistically analyze the behavior of those departments wrt to shootings and the aftermath.

                    Maybe that analysis has been done and I just haven’t seen it, but if so, I have yet to see someone cite such work.

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                  • Because, the role that unions play here is to defend accused people.

                    Contrary to Road Scholar, this isn’t “like” blaming defense attorneys or the Bill of Rights for the role they play in protecting cops, this is “exactly” blaming unions for defending accused cops.

                    And once again, the mechanism of how this translates into less abuse is missing.

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        • “As long as the police continue abusing the right people – the one that moderate whites can look at and say, “Well, he wasn’t actually armed, but I can understand being concerned about him having maybe been armed…” – then the system will not change.”

          I’m pretty sure that, e.g., abusing unarmed white female college students would definitely get a response, and it’s pretty obvious that such an officer would be fired immediately and nobody would try to defend them.

          Right?

          I mean…right?

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        • In this case, the Union didn’t have to step in because of probationary status, but one does wonder if the Union would have given the full court press to protect the officer if he wasn’t probationary?

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  2. Radley Balko has been writing a lot about the “killology” lessons cops are taught these days: a pseudo-military training that teaches them to be paranoid and tell them, among other things, that the day the shoot someone they’ll go home and have the best sex of their lives.

    Interesting that the man with ACTUAL military training chose not to shoot, isn’t it?

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    • There’s a fundamental contradiction in how “we” think about police and policing.

      1. Because police are exposing themselves to the risk of violent death on behalf of the public, it’s important we not second guess them, or really question them in any way about how they respond to those risks.

      2. The first priority for police officers is keeping themselves safe.

      If the real priority of policing is keeping cops safe, and being a cop inherently exposes one to risk, why do we have cops at all?

      I suspect that unlike other dangerous professions, the idea that the cops are supposed to be protecting the public, and are presumed to be protecting the public against inherently illegitimate actors, makes all the difference.

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      • “2. The first priority for police officers is keeping themselves safe.”

        Yes. Think of this in the context of a militarized police force. In a combat zone, one of the highest priorities of a combat unit is force protection: Eliminate a perceived threat before that threat can harm the combat unit. Whether or not the perceived threat was an actual threat is irrelevant. When your police force is militarized, “force protection” becomes a priority over “de-escalation” or “protecting the public.”

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  3. Excellent piece Em, and in general I agree with it.

    BUT!

    ALL GUNS ARE LOADED! ALL THE TIME! The dispatcher wouldn’t have said it is unloaded, because they don’t know that. They may have been told this, but that doesn’t mean it is factual. It may be what the caller thinks they saw, but it doesn’t mean that it is factual. They might have missed a magazine being slipped into the gun, a pocket, etc. They might be working on an assumption that it is unloaded because that is what they were told. But facts change over time, even as short of a time as this.

    This doesn’t excuse the rank idiocy of the secondary officers and their killing ways. But it is something that needs to be mentioned. Just like you don’t “shoot to wound” or fire a warning shot in the air.

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    • Sure, I get that, and I think the officers would have acted on the assumption it was loaded even if they had been told something like “caller advises the weapon is not loaded.” But I do think it was worth mentioning the “intending to commit suicide by cop” bit.

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      • I’m with you on this point, and in general. While it is important to be able to point the gun and pull the trigger as part of the job, and that isn’t easy, it’s also important to develop the ability to restrain that impulse.

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