Laurent Lemasson holds a doctorate in public law and political science.
Tuesday morning, in Nanterre, a 17-year-old man was killed by a police officer using his service weapon, after refusing to comply with the orders of the police.
Around 8:15 a.m., officials wanted to check a Mercedes traveling in a bus lane but the driver refused to stop. He found himself stuck in a stalemate. A police officer then positioned himself near his vehicle, weapon in hand, when the driver began to resume his race. At that moment the policeman shot him, fatally wounding him.
As almost always in such cases, this death was followed by riots in the "city" from which the young victim came. As always in such cases, the authorities tremble at the idea that all the "sensitive neighbourhoods" of France could go up in flames, as in November 2005. More than 2000,<> police and gendarmes should be mobilized Wednesday night in the Paris suburbs to prevent further violence.
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The use of their weapon by police officers and gendarmes is regulated by Article L435-1 of the Internal Security Code. Schematically, this use can only be justified by the protection of the physical integrity of the agents or that of others. It is also subject to a requirement of "absolute necessity" and strict proportionality.
The police officer responsible for the fatal shooting has been taken into custody and is expected to be charged with intentional homicide. It will be up to the courts to determine whether the requirements of Article L435-1 have been complied with and whether or not the use of his weapon by this official can be considered as a form of self-defense.
In very general terms, the proportion that must be observed is that between the violence deployed by the offender to evade the law and that which is necessary to overcome this resistance.
Laurent Lemasson
But without waiting for the precise circumstances of the case to be known, leading politicians have taken a loud stand. Manuel Bompard, coordinator of La France Insoumise, said: "Yes, a refusal to comply is against the law, but death is not part of the sanctions provided for by the Penal Code." An argument taken up by Olivier Faure, first secretary of the Socialist Party: "The refusal to comply does not give a license to kill."
Emotion is certainly legitimate in such circumstances. It is, of course, always infinitely regrettable that a simple police check ends with the death of a teenager. But these political positions can hardly be seen as a spontaneous reaction to a tragic event. For several years, in fact, it is always the same elements of language that are repeated when a tragedy of this kind occurs, the general idea being: a refusal to comply does not deserve death.
However, this way of presenting things is entirely sophisticated and can only lead to inflaming passions and clouding judgment, because the use of violence by the forces of law and order is not a punishment: it has absolutely nothing to do with a penalty provided for in the Criminal Code.
A punishment is what justice inflicts on you when you have committed a crime or misdemeanor. This sentence must normally be imposed after a fair trial and proportionate to the seriousness of your fault.
The use of violence by law enforcement agencies is not intended to punish offenders but to force them to submit to the law. In very general terms, the proportion that must be observed is that between the violence deployed by the offender to evade the law and that which is necessary to overcome this resistance. It is also understood that, unlike justice, which can and even must take its time to deliver its verdict, law enforcement agencies must most often use violence in situations of urgency and intense stress, which leave very little room for reflection.
The principle that guides – or should guide – justice is: to each his due. The principle that guides – or should guide – law enforcement is: force must remain law-abiding.
Laurent Lemasson
The proportionality that one is entitled to expect from the forces of law and order in the use of violence will therefore be much less strict than that which one is entitled to expect from the judiciary in the imposition of sanctions. And the guiding principle will be entirely different.
The principle that guides – or should guide – justice is: to each his due. The principle that guides – or should guide – law enforcement is: force must remain law-abiding.
It would be totally unfair to sentence someone to death for refusing to comply. On the other hand, the death of the offender as a result of the action of the police may, depending on the circumstances, be entirely excusable, because the use of violence is never without risk, including fatal; because there is always a very simple way not to expose oneself to this risk, which is not to resist (even if it means contesting after the action of the police in court); And finally, because the law must remain in force – if at least we want there to be a legal order.
To consider that the priority for law enforcement should be to preserve the physical integrity of those who defy the law is to exempt the violent and the bold from respect for the law and, conversely, to reserve its rigors only for those who are honest enough or fearful enough not to rebel.
Such an approach is clearly destructive in the long run of the very notion of legality. The law, which was supposed to protect the weak against the unjust claims of the strong, would become the instrument of the strong to oppress the weak.
Saying "a refusal to comply does not deserve death" is obviously intended to cut short any debate and reflection: since no sane person can believe that a refusal to comply is worth the death penalty, any death caused by the forces of law and order will immediately be considered a very serious fault. And this does not only apply to the use of the service weapon: any use of force to coerce an offender or suspect carries a non-zero risk of resulting in the death of the offender. We will of course think of the case of Adama Traoré, or that of Cédric Chouviat, or even, in the United States, the death of George Floyd.
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Applying criminal justice criteria to the use of violence by law enforcement agencies can therefore lead to only one thing: delegitimizing their action and, ultimately, making it impossible.
To repeat it, it will be up to justice to determine whether the police officer responsible for the fatal shot, this Tuesday in Nanterre, committed a fault and deserves to be punished. What is certain is that presenting this shooting as a disproportionate punishment does not serve the cause of justice, nor that of civil peace.