Law of Self Defense: EJ Bradford Shooting “Awful but Lawful”
The law requires reasonable, not perfect, use-of-force decisions
In this Case of the Week (COTW) we take a look at the “awful but lawful” shooting death by police of EJ Bradford in Alabama.
On November 22, 2018, an Alabama police officer shot and killed EJ Bradford Jr., a black male, while responding to a shooting in a shopping mall. It would ultimately turn out that Bradford was himself a good guy seeking to intervene against the person who was the unlawful shooter.
Given that Bradford was not a violent bad actor who needed to be shot, it is reasonable to ask whether the officer’s conduct was lawfully justified.
Yesterday, the Alabama Attorney General issued a report of their investigation and conclusions (report embedded at the bottom of this post). For purposes of this COTW, I’ll provide an outline of the relevant legal analysis framework and a summary of how the AG report determined the facts and how those facts aligned with the law to arrive at their conclusion.
Law Requires Reasonable, not Perfect, Use-of-Force Decisions
First, it’s key to remember that the law does not require us to make perfect use-of-force decisions, although that would, of course, be ideal. Rather the law requires us to make reasonable use-of-force decisions. It is permissible to make mistakes in your use-of-force decision-making, so long as those mistakes are reasonable mistakes.
This is true for both law enforcement and non-law enforcement use-of-force decisions.
This condition of reasonableness is one that matters because an unreasonable mistake that results in a death is pretty much the definition of manslaughter.
Reasonableness Assessed Subjective and Objectively
Further, reasonableness must be determined from both a subjective and an objective perspective. First, what matters is not what the facts actually were, but how those facts appeared subjectively to the person who used force. Second, we must consider whether an objectively reasonable and prudent person, possessing similar skills, training, and knowledge, and in the same or similar circumstances, would have shared that subjective perception.
With that framework in mind, let’s consider the facts as determined by AG’s investigation and described in the AG’s report.
Deadly “Black Friday” Sale
The police officer in question was on duty in the crowded “Black Friday Sale” shopping mall when he heard shots fired nearby. Unknown to the officer at the time, these shots were the result of one Erron Brown shooting a Brian Wilson, actions that took place outside of the officer’s sight. In response to the fired shots, the crowd of bystanders immediately began rapidly fleeing the scene.
Upon hearing the shots fired, the officer drew his service pistol. He almost immediately observed a male, later identified as Bradford, gun in hand in a firing position, moving away from the officer and closing on the apparent gunshot victim who was leaning on a railing and being assisted by a friend.
Everyone except Bradford (including the actual shooter) was moving rapidly away from the location of the gunshot victim. The officer perceived that Bradford, gun in hand, was an apparently continuing imminent deadly force threat to the gunshot victim whom he was nearing, as well as an imminent deadly force threat to other nearby bystanders in the mall, to to the officer himself, and to his nearby police colleagues.
The officer fired his service weapon at Bradford to neutralize this apparent imminent deadly force threat. Bradford was hit three times, with one round striking him in the back of the head and stopping him immediately.
Cop: No time for warning. Witnesses: Cop warned him three times!
Interestingly, when questioned the officer would report that he did not give Bradford any verbal commands before engaging him with fire due to the lack of time to do so. Conflicting with this was testimony from two separate witnesses, both of whom would tell investigators that they distinctly heard the officer order Bradford at least three times to disarm before the officer began shooting. This kind of inconsistency of evidence is not uncommon in high-stress use-of-force events.
Investigators from the Attorney General’s office would interview three additional officers and 47 other witnesses and would find no evidence substantively inconsistent with that already described.
AG: Shooting Was Awful, But Lawful
Given the uncontested evidence available to the officer at the time, and the officer’s need to respond to the apparent deadly force threat presented by Bradford in an extremely compressed timeframe, the AG concluded that the officer’s decision to use deadly force against Bradford under these circumstances was legally reasonable, both subjectively and objectively, even though that decision was literally mistaken. In other words, the shooting was awful, but lawful.
Again, we’re not required to make perfect use-of-force decisions, we’re required to make reasonable use-of-force decisions.
The report quotes from the 1989 U.S. Supreme Court police use-of-force case Graham v. Connor (a civil case, but that’s a subject for another day):
“[t]he calculus of reasonableness must embody allowance 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.”
This is also often true, of course, for non-LEO use-of-force situations.
The AG’s report notes:
“Officer 1 was faced with such a ‘tense, uncertain, and rapidly evolving’ situation when he saw E.J. Bradford running with a gun towards unarmed persons, and his response to that split-second situation was reasonable and based on an appropriate level of care for innocent lives.”
Again, the same circumstances would be relevant in a non-LEO use-of-force analysis.
The AG’s report concludes by stating that because the officer’s use-of-force was reasonable under the circumstances it was therefore justified and not criminal, and thus, the AG was barred from seeking criminal charges against the officer.
Caution! Awful But Lawful Is Not Uncommon
A closing observation: This kind of “lawful but awful” shooting happens with some regularity, folks, especially in chaotic defense-of-others scenarios. This time it was an officer reasonably if mistakenly shooting a civilian good guy. I’ve seen plenty of cases involving one officer reasonably if mistakenly shooting another officer. Sometimes it’s one civilian reasonably if mistakenly shooting another civilian.
Gunfights are dangerous, folks. When you get into a gunfight, there’s a meaningful probability that you will die. You might die because you’re hit by a bad guy’s rounds, by a responding officer’s rounds, or by the rounds of another law-abiding gun owner who is trying to do the right thing just like you. Alternatively, it might be you who reasonably but mistakenly takes the life of another innocent party, thinking all the while that you’re targeting the bad guy.
I’m not telling you not to intervene to protect others. That’s a call only you can make under the circumstances as you believe them to be. I’m only urging you to know the law, to understand how that law is applied to these kinds of scenarios, to make that decision whether to intervene in an informed manner, to think about these decisions today, and ultimately, to be sure the stakes are worth the risks.
–Andrew
Attorney Andrew F. Branca
Law of Self Defense LLC
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[NOTE: Featured image is of EJ Bradford seen with gun in hand, and was captured from shopping mall surveillance video at time of shooting.]
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Comments
Very sad.
officer would report that he did not give Bradford any verbal commands before engaging him with fire due to the lack of time to do so. Conflicting with this was testimony from two separate witnesses, both of whom would tell investigators that they distinctly heard the officer order Bradford at least three times to disarm before the officer began shooting.
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this does bug me but can be explained (just firing blindly here…pun intended) the witnesses MAY have heard BRADFORD saying that to BROWN.
a lawful tragedy. sad all the way around.
Sounds very similar to the shooting last year by the Portland State University cops where a CHL person was trying to stop a fight outside of a bar, dropped his gun, and was trying to retrieve it when shot.
I have no information on the timing involved in this case. And, that is critical in determining whether this shooting was, indeed, “awful”. There is no doubt that it was both legally justified and tragic.
If the witnesses are accurate, then the victim was instructed, 3 times, to drop the gun. And, he did not do so. He continued to advance on the unarmed civilians. He was then shot. Here is where timing is critical. Depending upon how long it took to administer the direction to drop the gun and the delay between the last direction and the first shot, from the LEO, it becomes easier to guess whether the victim was given enough time to respond. Which can indicate if the shots were, possibly, premature and, there, “awful”.
The important thing to take away from all of this is that both these people, shooter and victim, were not paying attention to their surroundings. In the case of the Good Samaritan victim, he was locked in on the prior shooting victim and did not know that the LEO had arrived. Also, he probably was not prepared to respond immediately to external direction, such as a warning to drop the gun. Unless properly trained, a person often has to perceptively switch gears to understand the warning and to respond. The officer was also keyed in on what he believed to be an imminent shooting of a defenseless citizen. He was so locked in, that he automatically delivered three warnings to drop the gun, which he did not remember doing, before he fired. In both cases, this indicates a lack of sufficient training and experience in these types of situations. While experience is difficult to obtain, fortunately, training is not.
So, the take away is that sufficient, effective training is critical to surviving these situations, physically and legally. On a regular basis, plain clothed LEOs get shot by uniformed LEOs, because they are not properly trained on how to behave in a situation where identification is vague or misleading. Training, training, training. It can keep you alive.
I agree with most of your comment but…it appears your comments are only from the perspective that the office was wrong in his account.
I’m interested in understanding why you would disregard the statement of the officer and assume the witnesses are correct? Eye witnesses are notoriously inaccurate and I assume actors would have the best account of what they did. Unless they are lying and most people wouldn’t lye to make their case look worse.
I have a ccw permit but it will be a cold day in hell before I pull it out and wave it around. I would be very hesitant to step into a situation and try to act like a cop. If my life or someone near me was threatened then yes but never run into a fight with my gun out. I was at a 7-11 one-day buying beer and the man in front of me was robbing the clerk at gunpoint. I did not realize it until he was leaving and I saw the gun in his hand. Had I jumped in and shot him or wounded him and then he had shot me or the clerk, I would have been worse than he was. IMHO. Just because we are licensed to carry does not make us the law. If it was a mass killing or a random killing then I would step in if given the chance. But I and most of the ccw carriers are not trained for that kind of action. You have to use some common sense.
Very sad, indeed.
Mr. Bradford should be remembered as a hero. The criminal behind all this should be crucified.
And yet cops can’t understand why people hate them.
This was an illuminating essay on a tragic situation. Thank you, Mr. Branca, for sharing your insights.
Perhaps the policy I’ve heard espoused by many concealed carry holders is the best:
“I carry to protect myself and my family…not you. It’s your responsibility to protect you. If you choose not to avail yourself of the proper tools and training to do so, that’s on you, not me.”
To be honest, I’m not sure how I’d react if thrust into a situation where I could intervene to protect others.
I think I’d have to be darn sure I knew what was going on before popping off rounds. I wouldn’t want the knowledge that I’d mistakenly killed someone who was also trying to do the right thing. But I also think if I was in a situation where I was sure I understood who the good guys and who the bad guys were, I’d be very hard pressed not to intervene, even if it did place me at risk. I guess you never really know until you’re there.
With that said, I can see the advantages of the “you’re on your own” policy…and pragmatically, the reasoning is correct: the only person responsible for you is you. If you don’t take your own life seriously enough to be prepared to defend it, why should I place my life at risk to do so?
tragic to be sure–two brave men acting to protect others–the leo must live with this for the rest of his life as well
kudos to them both
Let’s not forget a couple salient facts that get left out of the MSM version of this story—Bradford was not an officious CCW trying to be a hero. He was not a bystander.
1. Bradford was involved in the fight that led to the shooting. The guy who got shot was Bradford’s buddy.
2. Bradford had, an hour before, posted a picture of himself brandishing a gun online.
It’s a reminder that any action you take in a self defense scenario (is / will be) subject to multiple interpretations.
Very informative analysis, for those who CCW, regarding the wisdom of intervening in a shooting incident,, from the point of view of a bystander CCW. Even in less congested circumstances, the arriving cop will have to figure out that you are a good guy trying to help, not the bad guy.
In this case, the bad guy Brown was apparently already running away, and within CCW Bradford’s line of sight. Although the timing was very short, it is likely that he could perceive that the threat was rapidly leaving the scene.
From the point of view of a CCW, this is a cue to immediately and conspicuously disarm (assuming one has made the risky decision to intervene in the first place).