The 1989 U.S.Supreme Court decision that guides prosecutors, grand juries, and juries in determining whether to charge or convict a police officer of excessive use of force is particularly interesting because it involved a man who was suffering from an episode of low blood sugar related to diabetes. It is not uncommon for individuals suffering from diabetes, epilepsy, or other physical health conditions to run into confrontations with law enforcement officials, often ending up at the receiving end of considerable force or restraint -- sometimes even death. Often individuals experiencing such events can not hear, or can not respond to, officer instructions to stop or kneel or drop what is in their hands. Sometimes they may be flailing or cursing as part of the pattern that precedes a seizure or blackout.

Some years ago a very pregnant friend of mine, wearing her husband's large overcoat, passed out in Penn Station and woke up with a cop putting the boot to her on the presumption that she was a drunken wino or wasted heroin addict. Never mind that one might reasonably question whether cops should be putting the boot to passed-out winos or heroin addicts instead of calling an ambulance, but in this case it was merely the grace of whatever Deity was watching out for this unborn child that neither it nor the mom wound up with permanent injuries.

The standard set by the U.S. Supreme Court requires prosecutors, grand juries and juries to consider what a reasonable police officer, in light of their knowledge, training and concern for other members of the community, would do if faced with exactly the same circumstances. If the person is acting strangely, appearing agitated, does not respond to commands, then by law a level of force, up to and including deadly force, can be used to subdue that individual.

With a steeply increasing percentage of our population taking pharmaceuticals for mental health issues -- anxiety, depression, ADD -- these conflicts and their often deadly results seem to be getting all the more common. At the same time, public acceptance of the legally-sanctioned response is diminishing. Large segments of the public are expressing dismay when police promptly shoot a young man who seems to be in a daze and is chanting, 'shoot me, shoot me now, shoot me'. The public is baffled, hurt and angry when police promptly shoot and kill a man who is experiencing a medication error episode and is swinging around a shovel in his own front yard. Every one of us with a friend or relative who sometimes has moments where they can't respond swiftly to a police command to get down, or a friend or relative who might sometimes slip into a seizure with unpredictable behavior, now has to ask ourselves if that person is at mortal risk going out in public places. Any parent or spouse or friend whose loved one goes into one of these episodes now has to wonder what to do: Calling for help will wind up with police dispatched, and the request for help might well end with a body bag instead of assistance.

The problem is a disconnect between the law of what the police CAN do -- what they are legally authorized to do -- and the ethics of what they SHOULD do. Just because you are allowed to do something legally doesn't mean you necessarily should assume it's the right thing to do. And yet, how do we go about training police officers to follow established protocols for community safety on the one hand, yet exercise the ethics of discretion on the other?

Or, are we asking too much of law enforcement to expect them to be able to discern a medical situation from a criminal justice situation? In years long ago, when the mental health field was dominated by residential institutions, there was another response option -- the men in the white coats with straight jackets. When we as a society collectively determined that large mental institutions and those guys with the straight jackets were inhumane, we did not create any alternative to take their place. You can call an ambulance -- but if the person is bouncing around or swinging or throwing things, the ambulance personnel will ask for police back-up. There's no other choice. There's no middle ground. There's no protocol for identifying and differentiating a person who is acting in a disturbing manner from a medical event from a person who is acting in a disturbing manner from an addictive substance habit or through sheer criminality.

Nor is there any ethical guideline in our culture for determining where along the spectrum of medically and chemically induced behavior our official response should differ. Should the person throwing things around a store and cursing in the midst of a pre-seizure event due to epilepsy be treated by medics, but the person throwing things around a store and cursing due to PCP in their pot or a bad meth experience get shot by police? Is the person chanting 'shoot me' horribly depressed and suicidal such that they should receive emergency mental health counseling, or are they a split second away from swinging a knife at someone nearby and thus present a severely dangerous threat to the community and must be shot? Who is going to decide which is which, and how?

The legal standard itself is highly subjective. There is no checklist, there is no explicit court ruling that lists precise actions or timelines required; instead, individuals have to compare the standard to the facts and determine if the officer's actions were legally warranted by the circumstances. Obviously there are some cases where the answer is clear: the armed robbery in progress, the person holding a hostage at gunpoint, and similar situations warrant the force necessary to stop them in order to save other lives. A whole mess of other cases are not remotely as clear.

But beyond that legal standard, our society has not had the serious, focused, intense discussion necessary to establish ethical guidance for our official governmental response to incidents where individuals are displaying erratic behavior as a result of physical or mental health incidents or chemical imbalances. Should states and communities adopt laws and policies directing law enforcement to only use lethal force as an absolute last resort? Should police have more extensive medical training, and be given other non-lethal protocols for dealing with these cases? Should police be integrated with medical personnel who are charged with making swift assessments of the causation of these incidents? Should there be some other entity responsible for responding to incidents involving erratic behavior possibly related to physical or mental health? And are we all willing to pay for and support the development of these alternatives?

The conflict between law and ethics is that what the law says CAN be done is not necessarily what SHOULD be done. The public is speaking loud and clear that we don't think the level of law enforcement force applied to individuals experiencing mental and physical health events is appropriate -- yet, we are not having the conversation about how we all SHOULD respond to such incidents, which leaves police as the default responders, and the legal standard as the default protocol. We don't like the rock, and we don't like the hard place, and we have not yet figured out what other options there might be.

Our society needs to engage in open, meaningful public discussion at every level from neighborhoods to Congress, with law enforcement, mental and physical health care providers, members of the disabilities community, and just plain caring citizens at the table. This is probably best started by urging your town and city governing bodies, which have oversight over community police entities, to begin the conversation with an eye towards transparency and vetting of local and state police protocols on use of force. Law enforcement agencies are employees of us, the people. We should be clear in our directives to our law enforcement agencies that we value the lives of the persons in our communities with physical and mental health issues, and want to ensure that they live with dignity and respect even when in the midst of frightening or disruptive health and medication events.

**** UPDATE

I originally wrote this column in 2011. Since then we’ve seen quite a number of young men carrying pellet guns shot dead by police. For example, in 2013, Andy Lopez, a 13 year old in California, was shot dead on the street while returning a pellet gun to a friend in the morning before school started. And in the summer of 2014, John Lopez, a 22 black man, was shot and killed in an Ohio Walmart while walking around the store shopping holding a pellet gun he had picked up off the store’s shelf, probably intending to purchase it.

While I continue to dislike toy and pellet and paintball guns precisely because they create unnecessary confusion, these tragic homicides were more about bad police protocols than about the products made by Crossman and AirSoft. It seems police nationwide are employing practices in which they issue one order—to put down a weapon, to drop to the ground—and then fire immediately when the order is not fulfilled. This protocol has led to the deaths of scores of individuals suffering from mental health or physical health or medication episodes which render it impossible for them to comply instantly; to the deaths of these two young men and many others like them who might be wearing ear buds or talking on the cell phone and not hear the order. It’s implication to anyone suffering a hearing defect or physical impairments making fast movement difficult is quite clear. (Some witnesses in John Lopez’s case also suggest that the shots came before the directive to drop the weapon, and that the police never even identified themselves.)

The media-driven pervasive atmosphere of fear that wracks our country has obviously percolated deep into the hearts of our nation’s law enforcement officers. All those action movies in which the goal of the hero is to take out bad guys then walk off into the sunset without consequences are seeping into law enforcement consciousness – and civilians seem to be demanding it. But once a young man is dead on the ground – a father, a son, a friend, a neighbor, and employee – reality seeps back in: There are consequences, tragic and horrible consequences, both immediate and long-term. Each death deepens divides, creates defensiveness, adds to the us-and-them mentality, which leads to more fear, which leads to more confrontations and more tragic results. This is particularly true in the many deaths of young black men, where it is clear that deep-seated presumptions play into the chain of decisions, from whether someone calls the police in the first place to how those police view the unfolding events.

I still don’t like toy guns – but civilians should not have to adjust their lives and habits in order to accommodate police protocols. Police work for us, and are answerable to us. It behooves each of us in our communities to make it clear that we expect a community policing approach that respects all of our lives, that starts with the intention of protecting and respecting each and every one of us – which means not leaping to conclusions about an individual’s intentions. Granted, these calls on the ground can be difficult, but transparency, clear protocols and training, community input and prompt professional communications with the public will go a long way towards establishing trust and renewing our faith that justice, rather than blind fear and prejudice, is being served.

******

ORIGINAL COLUMN:

Growing up in the 1960’s on Long Island, I had a gorgeous chrome pearl-handled cap pistol that was the perfect accessory for those occasions when I wore my red and white cowgirl hat and rode that squeaky-spring hobby horse through many living-room adventures. Later, it was tucked in my waistband as I raced my bike through the woods on a top-of-the-lungs charge, or crept through the underbrush imitating the war scenes we watched on the nightly news. Those rolls of red-paper-wrapped caps didn’t make much noise, admittedly, but they sure smelled good.

I was reminded of that cap pistol about a year ago when I stepped around the end of a set of shelves in the local bookstore while perusing new cookbook titles, and found myself staring down the barrel of a chrome revolver. My heart leapt to my mouth, my left hand flying outward to block the barrel and my right closing into a fist and curling downwards towards the much shorter person who was brandishing the weapon. I realized it was but a cap pistol, just like mine, about the same instant that the little pardner yelled BANG BANG BANG.

I expressed my displeasure at having a gun barrel shoved in my face to the parent of the young cowboy. The parent was irate--- at me, for daring to be offended that her precious baby was just playing with a toy, and it’s not her fault or the kid’s fault that I’m a ‘gun freak’ who assumes people would carry around real guns and point them at people, what kind of a world do I live in, and so on and so forth.

Be that as it may, I do not appreciate having a chrome gun barrel shoved in my face. It looks far too real, which creates far too many hazards. Like, if the little cowboy finds himself in a house with real guns about, he’s not likely to know the difference, having been raised with realistic looking toys but no genuine articles. And on another street, another person might not have stopped their punch which would have, in the least, broken his nose –or another person, civilian or law enforcement, might well have shot the boy first and taken a closer look at the gun later.

All reason why in my house, with its abundance of real guns, I never allowed any toy guns that looked anything like an actual firearm. Our water soakers were bright orange. Well, actually, I did cave on the pine-board rubber band guns – but I’m pretty sure most civilians and law enforcement officials can tell they aren’t real rifles with just a quick glance. My girls shot real guns from a young age, with all appropriate range protocols in place. I did get a pistol safe—but immediately taught the kids the combination on it so they could get the handguns in case of home intrusion (or a rabid coyote coming after the chickens).

But something was nagging me about how incredibly realistic that chrome barrel appeared. It wasn’t until a couple hours later that I realized it: The chrome-plated cap pistol that the young bookstore cowboy was brandishing at me was illegal. I wonder what his liberal, oddly anti-gun-but-pro-cap-gun mom would think of that.

Since 1988, federal law has required that all toy guns be clearly and obviously identified. Department of Commerce regulations, 15 C.F.R. Sections 1150.1 through 1150.5, require that all “toy, look-alike, and imitation firearms having the appearance, shape and/or configuration of a firearm and produced or manufactured and entered into commerce on or after May 5, 1989” be either completely translucent, or completely painted or finished in a day-glo type color not associated with a real firearm, or at the least have a blaze orange or brighter plug in the barrel, or the last 6 mm of the barrel painted blaze orange or brighter.

Federal regulation of toy gun marking does not include paintball guns, BB guns, or compressed-air guns that shoot metal pellets. Although these are not “firearms” within the federal gun control law definitions, neither are they toys—they shoot real projectiles that, as every mother has warned, can take your eye out, or worse. I realize this is confusing – air soft type guns that shoot plastic pellets DO need the orange tip, but other Crossman style BB and pellet guns that shoot metal projectiles DO NOT need the orange tip.

But before I rant along the theme of there’s-never-a-cop-when-you-need-one-to-arrest-parents-who-distributed-illegal-toy-guns-to-their-kids, I have to confess: my 1960’s cap pistol was apparently illegal as well. New York City has banned any toy gun that was black, blue, silver, or aluminum, since 1955.

Subsequent amendments have expanded and clarified the New York City law. Fines for sale of illegal toyguns are escalating, and the City is collecting millions of dollars in fines from merchants selling illegal toy guns.

Other states have also adopted toy gun laws. California prohibits the sale of any imitation firearm which is not blaze orange or day-glo green, for example.

But realistic looking toy guns continue to make the news on a regular basis. In February 2010, BATF seized a shipment of 30 Airsoft replica rifles which were being imported through the Port of Tacoma for a Washington state retailer. Airsoft manufacturs BB guns, which are purportedly exempt from the toy gun marking laws under the federal regulations. However, it appears that the high-end Airsoft rifles, retailing (according to the Airsoft website) for $300 and up, are battery-operated; the compression which expels the projectile is created by a battery-driven piston. These models do not appear to meet the Department of Commerce exemption definition. Thus, they must be marked as toy guns—as they are pictured on the Airsoft website, with orange barrel-end markings. The seized Airsoft rifles were not appropriately marked. The latest news reports indicate that BATF intends to destroy the shipment; firearms advocacy groups are voicing their opposition to ‘toy gun control’.

Meanwhile , in early March 2010, a 3 year old girl in Tennessee shot herself fatally in the stomach with her stepfather’s pistol. The mother and stepfather voiced their belief that the toddler mistook the firearm for the family’s Wii remote. The precise model of pistol is not identified in news reports; however, a photo on a local television news station’s website shows a small, matte black semi-automatic pistol next to the Wii accessory – and the similarity between the two is striking. As of this writing it appears that no charges will be pressed against the parents in relation to the incident.

Internet buzz has made great hay over the fact that the Wii accessory in question is an illegal toy gun, without it’s requisite blaze orange markings. However, it’s doubtful that the result in this incident would have been different if the Wii accessory had been properly marked. This is not an incident of a civilian or law enforcement officer shooting a child because he or she thought the child was holding a real gun. This was an instance of a child picking up a real gun and likely trying to use it in the manner in which she’d seen her parents using the toy gun in the home. Blaze orange paint and more federal or local toy gun laws would not have changed this situation; nor is it likely that trigger-lock and gun storage laws would have made any difference, as according to local news reports, the firearm was out and loaded to respond to an apparent intruder on the property. That it was left unattended for but a moment is a tragedy that will no doubt haunt these parents for the rest of their lives; but every parent will have to decide for him or herself whether having realistic-looking toy guns in the house, with or without a blaze marking, is worth the confusion it may cause.

Firearms ownership is an extraordinarily valuable right. For myself, I’d rather impress upon kids the honor of that right, and not undermine its importance with a toy.