A Police Officer Shot a Woman in Pajamas. Here's Why It May Be Hard to Convict Him.

After all, no one has claimed that the woman did anything more threatening than “spook” Noor and his partner when she approached their squad car in a darkened alley. The woman — a yoga instructor named Justine Ruszczyk Damond — was unarmed and wearing pajamas at the time. And it was her 911 call, reporting that a woman might be under attack in the alley behind her house, that had brought the police to the scene in the first place.

Even so, legal experts say that prosecutors may have a tough battle on their hands to convince a jury that when Noor leaned over his partner and shot her in the abdomen, he was committing a crime. Here is why.

The Supreme Court says an officer’s actions can’t be judged with hindsight.

Every case of a police officer accused of using unreasonable force on the job, including Noor’s, is subject to a 1989 ruling by the Supreme Court in a case known as Graham v. Connor.

The court said that an officer’s actions “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” And that evaluation, the court added, must allow “for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.”

That ruling flowed from another case four years earlier, Tennessee v. Garner, in which the court ruled that officers could use deadly force to prevent an escape only when they had probable cause to think that a suspect posed a significant threat of death or serious injury to them or others.

Taken together, the rulings mean that to get a conviction, prosecutors must prove that an accused officer did not genuinely feel threatened and that other officers would not reasonably have used the same force in the same situation.

In the Minneapolis case, Noor did not speak to investigators. But his partner has said that he had also unholstered his service weapon and perceived that his life was in danger after hearing a voice and a “thump” behind him on their squad car, and glimpsing a person’s head and shoulders about two feet outside his window.

“We both got spooked,” he said.

Murder prosecutions of officers are rare, and convictions are even rarer.

In part because of those court rulings, the overwhelming majority of police shootings are judged by prosecutors to have been legally justified under the circumstances, even if they seemed egregious to the public. And of the 98 U.S. police officers who have been charged since 2005 with murder or manslaughter for an on-duty shooting, according to Philip Stinson, a professor at Bowling Green State University in Ohio, prosecutors have secured convictions or guilty pleas of only 35, mostly for lesser manslaughter charges. Just three convictions were for intentional murder.

In Minnesota, at least 164 people died in confrontations with the police between 2000 and 2017, according to The Minneapolis Star Tribune, but only two officers have been charged in those deaths: Jeronimo Yanez, acquitted of second-degree manslaughter in the 2016 shooting of Philando Castile outside Minneapolis, and Noor.

Juries “take the position of, ‘Would an ordinary police officer who was not negligent and who was in the same or similar situation react the way this policeman did?’” said Joe Friedberg, a prominent criminal defense lawyer in Minneapolis. “That’s why, for the most part, policemen are acquitted.”

Judges and juries may give officers even more leeway than the Supreme Court did.

Stinson, a former police officer and lawyer, said that juries and judges often seem to take the Graham v. Connor ruling too far, forgetting that the standard is supposed to be what a reasonable officer would do, not what the accused officer said he felt was reasonable.

And defense lawyers, who ordinarily avoid putting their clients on the witness stand, often do the opposite in police shooting cases.

“Juries are very reluctant to convict officers who testify in their own defense that they perceived an imminent threat, whether their actions were objectively reasonable or not,” Stinson said. “As soon as the officer takes the stand, it seems that all the work the prosecutors have done is disregarded or given less weight by the trier of fact than the officer’s own testimony.”

Friedberg said he expects Noor to take the stand in the trial: “He’s going to have to testify that his state of mind was similar to his partner’s.”

Police officers have grown accustomed to that leeway.

Civil rights advocates say the Graham v. Connor ruling has not only made it harder to prosecute officers for using deadly force, but it has also made it more likely that officers will use deadly force in the first place. They say a generation of officers, trained to follow policies that reflect the ruling, have been inculcated with a very permissive approach to what is reasonable.

But the thinking behind those policies may be changing.

“There has been a fair amount of reflection, though much more is needed, around these issues, and in placing the sanctity of life at the center of use-of-force policies,” said Vanita Gupta, a former head of the Justice Department’s civil rights division who is now president of an advocacy group, the Leadership Conference on Civil and Human Rights.

A case in point: An influential group, the Police Executive Research Forum, has been urging departments to adopt policies that go well beyond those tailored to fit Supreme Court precedent. Police forces in New York City, Washington, D.C., and Los Angeles have already done so.

The group’s executive director, Chuck Wexler, said there was a growing awareness that the Supreme Court ruling had helped spawn many “lawful but awful” shootings that were legally defensible but “morally unacceptable.”

“Today, there is a recognition that Graham v. Connor is the floor, and not the ceiling,” he said.

This article originally appeared in The New York Times.

A Police Officer Shot a Woman in Pajamas. Here's Why It May Be Hard to Convict Him.

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