If the police officer who shot Jacob Blake can prove he feared an 'imminent risk of death or great bodily harm,' his shooting could be legally justified

• In the past week, the police shootings of 29-year-old Jacob Blake and 31-year-old Trayford Pellerin have made headlines as the latest examples to fuel nationwide protests against racism and police brutality.
• In both cases, officers are reported to have shot the men while their backs were turned, sparking questions about when it is appropriate for police to use such force.
• Whether these shootings are legally justified depends on whether officers reasonably believed the suspects presented an imminent risk of death or great bodily harm, policing experts told Insider.
• However, experts said these types of police shootings are often indicative of the greater problems in US policing, like insufficient training and the lack of clear national standards.

On Sunday, police officers in Kenosha, Wisconsin fired at least seven shots at 29-year-old James Blake, who is Black, as he had his back toward them, once more raising questions about excessive use of force by US police officers.

Witnesses who saw police shoot Blake said they thought he has turned his back to return to a vehicle to check on his three young sons in the backseat.

The shooting left Blake's body with "eight holes" and rendered him paralyzed from the waist down, his father said on Tuesday. Video of the shooting, disseminated across social-media platforms, has refueled nationwide protests against police brutality, after the death of 46-year-old George Floyd, was killed in May after Minneapolis Police Department kneeled on his neck.

Days before Blake was shot, 31-year-old Trayford Pellerin, who was Black, was shot and killed Friday by police officers in Lafayette, Louisiana. Law enforcement, who had been called to answer a "disturbance involving a person armed with a knife," shot Pellerin multiple times outside a local gas station as he was walking away from police officers, the Daily Advertiser reported.

Law enforcement experts said these incidents aren't common but are often cause for concern

"Most police shootings do not involve officers shooting someone in the back, but some of the most egregious ones seem to," said Seth Stoughton, a former police officer and current law professor at the University of South Carolina, pointing to the 2015 shooting of Walter Scott in North Charleston, South Carolina.

On the morning of April 4, 2015, Scott, who was Black, was pulled over by a police officer because of a faulty brake light. Video taken by a bystander showed the former officer, Michael Slager, fired eight rounds at Scott as he fled the scene. In 2017, Slager, who pleaded guilty to violating Scott's civil rights, was sentenced to 20 years in prison.

"There's a difference between fourth amendment rules and state law," Stoughton said. "Under the fourth amendment, officers can use deadly force when they reasonably perceive an imminent threat of death or great bodily harm, either to themselves or someone else.

"So, if someone is just running away from the police as they try to arrest them, we don't generally think of that as carrying an imminent threat or great bodily harm," he added.

Instances where a police officer shoots a suspect in the back nearly always leads to questions about the "appropriateness and propriety of their actions," Stoughton said. While there are situations where this type of force is constitutionally permissible, those instances are rare, Stoughton said.

"It's not something that is clear cut," said Maria Haberfeld, a professor of police science at the John Jay College of Criminal Justice in New York City. "There's not an absolute prohibition in that sense, because it is a discretionary call on the part of the officer or the officers who take into consideration the variety of circumstances that might lead them to this conclusion."

In 1985, the US Supreme Court ruled in Tennessee v. Garner that police officers could shoot a fleeing suspect, but only when an officer believes a suspect poses a significant threat of death or serious physical injury to the officer or others.

"Most states follow the Garner rule," Stoughton said. "Some states allow some uses of deadly force that are more permissive than the Garner rule, and a number of states have some additional restrictions that are more restrictive."

While several states have incorporated either the "Garner rule," or other rulings like it pertaining to deadly or excessive force, a majority of states — including both Wisconsin and Louisiana where Blake and Pellerin, respectively, were shot — have not, according to a book co-authored by Stoughton, "Evaluating Police Uses of Force."

Some states, he said, have even kept a "fleeing felon" rule on the books, which allows an officer to shoot at a suspect attempting to run away if they have been previously convicted or are suspected to have committed a felony.

"It's not that shooting in the back is always prohibited, it's that it's probably prohibited because most of the time when someone is turned around or running away, they don't present a threat of death or great bodily harm to officers or other people," Stoughton said.

But just because force is legally permissible doesn't mean it's an officer's best course of action

"Anything that leads up to 'he was shot in the back' is problematic," said Lorenzo Boyd, a criminal justice scholar, who worked for 14 years in a Massachusetts sheriff's department. "The shooting itself becomes problematic, even though there may be some people that determine, based on the information, that the shooting was legal."

But, Boyd added, "there are times when just because things are legal it doesn't mean it's the right thing to do. In police training, we refer to that as being 'lawful but awful.'"

Boyd, who currently serves as the vice president for diversity and inclusion and chief diversity officer at the University of New Haven, told Insider that suspects often flee from police "to avoid the reoccurring indignity of being racially profiled." The Massachusetts Supreme Court in 2016 ruled that a Black suspect fleeing police does not constitute their being guilty of a crime, he noted.

"We need to take a step back and look at the tactics that led to [the shooting]," Boyd said. "A lot of times the police say they were in a position where they felt their lives were in danger, but if you look back, the reason they felt their lives were in danger was that they had really poor tactics that put everybody else in danger."

Boyd pointed toward the Cleveland, Ohio, Police Department's 2014 killing of 12-year-old Tamir Rice, who was fatally shot by an officer on a playground as he held a toy gun, as an example of poor tactics that lead to use of force.

"In the case that happened in Kenosha, there were four officers there, and they let the guy walk around the car and open up the car door," he said. "I guarantee that they will say they thought he was opening he car door to get a weapon to hurt them. The problem is the tactics that allowed him to walk around and do that."

It's unclear what happened in the moments before the video showed officers shoot Blake. Some witnesses have said police used a Taser and wrestled with him before the shooting, but it hasn't been confirmed.

"As soon as the police say 'I feared for my life,' as far as everyone's concerned, all bets are off," Boyd said. "We're going to go ahead and side with them based on that information."

Changes to the US policing system would prevent these cases from happening in the first place, experts stress

"It's never premeditated," Haberfeld said of instances where police shoot suspects in the back. "I cannot accept that statement that it's premeditated. It's not. It's an error of judgment — it's a poor judgment."

Haberfeld said centralized standards for policing — on the national and state level — would bring clarity to a decentralized system of over 18,000 US police departments. Beyond that, she said, policing reform activists and lawmakers should focus their efforts on raising the minimum standards required to become a police officer.

"We should be recruiting people who are older, more mature, and testing them for their emotional and social intelligence — not how many push-ups they can do or how fast they can run a mile," she told Insider, calling these assessments antiquated.

Boyd argued that improved tactics and training would likely lead to fewer cases like those in Wisconsin and Louisiana.

"Better training is not the use of the firearm," he said. "The better training is community engagement, cultural competency, and all sorts of other things that would lead officers not to believe that they needed to go to the firearm."