Counting Bullets Doesn't Add Up to Justice

In 2014 Chicago police officer Jason Van Dyke shot Laquan McDonald sixteen times with his service pistol as the armed hoodlum jogged down a city street slashing tires and brandishing a knife. A year later, California police shot nearly 400 rounds with high powered rifles at the San Bernardino killers in a brief close range gun battle in nearby Redlands, California. Assuming that just one bullet in twenty hit Syed Farook and Tashfeen Malik, they took as much or more lead as McDonald. The obvious objection to this comparison is that in the second case the criminals were heavily armed terrorists who had just committed mass murder, while in the first, the criminal was a drugged-out teenager, who had yet to injure anybody. But while the cases are substantially different in the severity of police provocation, they are orders of magnitude dissimilar in outcome with respect to the police officers involved. Van Dyke is charged with first degree murder, while the police that shot the terrorists are hailed as heroes. That drastic difference is troublesome from the standpoint of justice and public safety in a time of an increasing terrorist threat. 

The indictment of Van Dyke for first-degree murder raises fundamental questions of fairness and justice, when a veteran police officer acting against an armed and drugged defendant is charged as if he were a local gang-banger for making a split second decision in the line of duty. More broadly, along with similar cases, the rising risk of terrorism, and pressure of leftist protest movements (like Black Lives Matter) it raises questions of how police are to function in today’s political environment.

The McDonald case is similar in many respects to other widely publicized cases in which African-American suspects were killed by police, or died in police custody, most notably the Michael Brown case in Ferguson, Missouri, and the Freddie Gray case in Baltimore. The McDonald case is different in that it involved an armed suspect, the shooting was pretty much fully recorded on a dashboard camera, and in that the State indicted Van Dyke for first-degree murder.

The first-degree murder charges against Van Dyke case are somewhat easier to understand in light of the applicable Illinois statute, in which premeditation is not a predicate to a first-degree murder charge. The purpose of such a statute would be to make it easier to bring charges against gang members or other criminals who engage in apparent sudden violent conduct where premeditation might be hard to prove. By their nature, gangland affrays lend themselves to defenses (like self-defense since both sides may be armed) or second-degree murder or manslaughter charges (since the violence may come suddenly without an apparent premeditated plan). Used in such a way, such statutes may be a useful tool for law enforcement. It is indeed ironic that the State has used the statute in this case against a police officer attempting to do his duty.

The crux of the case against Van Dyke is not so much that he opened fire on McDonald, but that he fired sixteen rounds and continued shooting even after McDonald was on the ground. Van Dyke’s sustained fire is what presumably morphed (more reasonable though still unjustified) charges of negligent homicide or manslaughter into first-degree murder.

In the past 25 years or so, the amount of firepower available to the average policeman has grown considerably. Add to that, the almost endless assortment of tactical units which every police organization now seems to have, from local sheriffs to literally dozens of federal agencies. Whether this a good or bad thing is a different question from what it is reasonable to expect from police officers when handed this firepower and trained and expected to use it in certain circumstances. Today local police are expected to be ready to perform the usual tasks of a beat cop, for which a firearm is mostly unnecessary, to engaging in full-scale firefights. As a result, typical beat cops carry modern high capacity semi-automatic pistols and usually high-powered semi-auto rifles as backup in their cars.    

It is undisputed that McDonald was drug-addled, armed, committing violent acts and ignoring police orders when Van Dyke, carrying a high-capacity pistol, used it. Van Dyke is not a model officer, having accumulated a number of civilian complaints over 14 years (though not necessarily unusual for a big city police officer and none were sustained.) He was also arrived late to a scene where a number of other officers were present, who did not open fire. I don’t know what was going through Van Dyke’s head, or whether he should have been internally disciplined or retrained for his actions, but I am pretty sure he is not a murderer. Leftist politicians, prosecutors and media, along with an easily shocked and malleable public have enthusiastically second guessed his actions and made him the criminal, with McDonald a tragic victim. This is truly bizarre, though of a piece with the cases in Baltimore and (with the exception of the prosecutor) Ferguson. 

The armchair analysis of the videotape, in which pundits who were not there, and probably have never even fired a pistol, declare the McDonald was heading away, that Van Dyke took a step forward, that the follow-up shots were not only unnecessary but murderous, is as shocking as the video itself. It’s like parsing the video replay of an NFL fumble, except instead of a change of possession at stake it is a man’s life.  I’m concerned about the increasing militarization of the police, and think it is reasonable to question whether we need so many heavily armed cops and tactical teams. But I am not okay with equipping and training cops to take on terrorists and other dangerous criminals and then endlessly second-guessing them when they do. 

During the Redlands, California shootout 23 policemen fired approximately 380 rounds at Farook and Malik while the terrorists fired about 70. Authorities have not said how many times the pair were hit, and it is unclear whether autopsies were performed (they violate Islamic law) but it is safe to assume that the terrorists were hit multiple times, including after they were down. As the police fired they did not know whether Farook and Malik wore flak vests (they didn’t) or were rigged with suicide bombs (they weren’t.) Was that police fire excessive given this wasn’t the case, that the killers were heavily outnumbered amateurs, that Farook was running from his vehicle when he was finally shot down?  Even raising such questions seems ridiculous. The police in Redlands have been widely and properly hailed as heroes. Van Dyke had to make similar split second judgments only to be castigated and reviled, and now faces the very real possibility of life in prison for using his issued high-capacity pistol against what he reasonably believed to be an armed assailant. 

It is only a matter of time before the mainstream media and leftist politicians start questioning the conduct of police in shootouts like the one in Redlands, where police bring overwhelming firepower against terrorists. This has already happened in Israel (which largely serves as the West’s canary in the proverbial coal mine) where Israeli authorities have been criticized for inflicting “excessive force” losses on murderous Palestinian Arab terrorists little who are little different from Farook and Malik. Along with the left’s continued attempts to confuse terrorism with so-called “gun-violence” and to restrict rather than expand citizens’ Constitutional carry rights (as recently happened in Virginia) we may remain a reasonably well-armed nation, but legally unable to defend ourselves.