Lincolnite

This is an awful story, and the cops’ mistakes obviously caused the tragic death of an innocent person.

Having said that, I think that this situation has the potential to be a very interesting case with much relevance to the current war on terror when analyzed through the ECHR.

My read on this one is that the killing itself will likely be exonerated in the sense that the specific cops themselves will likely be found to have been acting in “good faith” when they killed him given the circumstances that existed. However, as in McCann and Others v. the UK, the critical question will be whether or not the authorities took the appropriate steps to prevent the situation that led to the killing to begin with.

Clearly, it was fubar if the authorities postively identified Menzes as the wanted bomber (or potential bomber) when he turned out to be totally innocent, his only crime being that he may have shared physical characteristics that made him “middle-eastern looking” (ie a potential terrorist).

As in McCann, the analysis might turn on the planning and investigatory context that led to his mistaken “positive identification.” If that is the case, the courts will analyze the extent to which the police are allowed deference to carry out operations that might be faulty (as it turned out in this case) in the context of responding to real threats of terrorist events. In other words, although it is ideal to have a “ready, aim, fire” policy when it comes to responding to terrorist acts, the question will become how much deference police will have to engage in “fire, ready, aim” procedures when the consequences of not doing so might mean failing to prevent a deadly bombing.

I believe (both personally and in terms of my understanding of UK/ECHR precedent on similar situations) that the UK courts will and should hold the authorities’ feet to the fire and find the government liable for his death for incorrectly identifying Menzes.

Both European and other judges (Israeli, etc.) have taken such a stance before on similar situations and the (correct) consensus seems to be that the “fate of a democracy” is to always hold the police/government to the highest possible standards no matter what the factual circumstances be, or the possible conseqences. It is unfortunate that the US has taken a different route.