Excerpted From: Elizabeth Harmon, A Deadly Combination: Violent Police Training, Racial Bias, and Lenient Courts, 85 Albany Law Review 709 (2021-2022) (237 Footnotes) (Full Document)


00NoPictureEvery American has a constitutional right against the use of excessive force by law enforcement; however, too often unarmed Black men not only have this right violated, but subsequently have courts tell them that the violation was legally acceptable. In the last decade, the disturbing number of unarmed Black men who are being killed by police every year has started to gain national attention. While these murders are often categorized as “reasonable,” the truth is that they are almost always avoidable. Police academies have trained police officers to believe that they are in constant danger of losing their lives, and that any hesitation in shooting a suspect could lead to their deaths. But the truth is that police officers are rarely in life-threatening danger; however, racial bias (whether conscious or unconscious) influences them to see non-existent weapons on unarmed Black men, and their training urges them to shoot those men. This Note asks the following questions: (1) whether police need to shoot unarmed civilians; (2) why so many unarmed civilians shot by the police are Black men; and (3) why these shootings of unarmed Black men are so often accepted and condoned by the courts, in that the majority of them result in no charges to the shooting officer. In analyzing the answers to these questions, this Note ultimately aspires to shine light on the fact that there is almost never a need for police to fire on unarmed civilians.

II. Why Police Use Deadly Force

A. Is Killing Civilians a Necessary Part of Policing?

Law and order in the United States is upheld by approximately 700,000 law enforcement officers. As a group, they collectively kill between two and three civilians per day, and over a thousand civilians per year, every year. The alarming regularity with which American law enforcement officers kill civilians is generally explained away and excused by the belief that policing is a profession that requires officers to take the lives of dangerous and threatening individuals in order to protect the lives of not only themselves, but all law-abiding citizens. However, the United States seems to be the only country that holds this belief, and the only country in the entire Western world that requires daily police killings in order to protect the public. In England, where all police officers and most civilians are unarmed, police killings are almost unheard of. According to Professor Paul Hirschfield, “U.S. police killed more people in the first [twenty-four] days of 2015 than British and Welsh police have killed in the last 24 years.” Even in countries where all police and many civilians do carry guns, U.S. police officers still outkill all of them. U.S. police kill civilians at twelve times the rate of the armed police force in Australia (who only killed six people in 2011), and four times the rate of the similarly armed Canadian police.

Americans downplay the inflated rate at which their law enforcement officers kill civilians compared to the law enforcement officers in other industrialized countries with similar cultures by pointing to the prevalence of guns in American society. The United States is a nation in which the right to own firearms is protected as a constitutional right and where gun access is relatively easier to obtain than in most industrialized countries. The logic is not hard to follow: because more civilians in America have guns, American police are more likely to encounter armed suspects, and therefore more likely to have a need to use lethal force against those suspects in order to keep themselves and any nearby innocent civilians safe. However, the numbers do not support this argument. While police departments like to boast that roughly 93% of civilians killed by police each year are armed, it is important to note what weapons the civilians are armed with. In 2020, 27% of those civilians who were armed had no guns, but instead were carrying either a knife, sharp object, “other object,” or were considered armed because they were in a vehicle at the time that they were killed. This means that while all police officers are armed with guns, only about 58% of all civilians killed by police in 2021 were. Perhaps even more alarming is the fact that in addition to being unarmed, 12.3% of civilians slain by law enforcement between 2009 and 2012 posed no immediate threat to either an officer or any other civilians. This raises the question that if police are allowed to shoot civilians who are not endangering anyone, is there anyone the police are not allowed to shoot?

It is undisputed and important to acknowledge that police officers have difficult jobs and do face dangerous situations in their careers, some of which require the use of lethal force. The issue is not the use of lethal force when required--it is the use of lethal force when not required. One thousand seventy civilians were killed by police officers in 2013. In contrast, twenty-seven police officers were killed by civilians that same year. It would seem, then, that in an encounter between a civilian and a police officer, the civilian is in more danger than the officer. In fact, a 2013 report by the Bureau of Labor Statistics found that being a police officer is not even one of the “top ten most dangerous occupations” in America. Truck drivers, logging workers, aircraft pilots, flight engineers, miners, farmers, ranchers, construction laborers, and even garbage and recyclable material collectors are all more likely to be killed on the job than a police officer.

Killing civilians is not a necessary part of policing in America. No other countries in the Western world have as many police killings as America does, and their law enforcement agencies are still able to police their respective nations. Policing is not even close to being the most dangerous occupation in America, and relatively few officers are killed by civilians each year. In police-civilian interactions, police are less likely to be harmed by civilians than civilians are by police. Police officers do not have to kill civilians daily in order to do their jobs, so the question becomes, why does this happen? The answer may lie in police training programs.

[. . .]

There are a number of different factors behind the nation's longstanding problem of police officers shooting unarmed Black men at alarming rates, and the effects of some of these factors can only be fully understood when examined together. This Note began by discussing the violent training law enforcement receive that encourages them to use deadly force on civilians. It then analyzed shooter bias, and how this phenomenon has resulted in an epidemic of police officers shooting and killing unarmed Black men because officers often believe that Black men are carrying guns even when they are not. Finally, it reviewed the lenient standard of reasonableness set forth by the courts in cases of deadly force by law enforcement, and how this has led courts to acquit many officers who have murdered civilians. Now it is time to bring all of these factors together, and discover what happens when you mix violent police training with shooter bias and lenient courts.

Every American has a constitutional right against unreasonable use of force by police officers, yet every week the national news reports incidences of Black Americans having this right violated. This outcome is a predictable result of the confluence of police training, racial shooter bias, and an interpretation of a reasonable force standard that broadly favors police officers. Because police training and culture emphasizes violence over mediation for conflict resolution, all too often routine violations, such as traffic stops, escalate into deadly encounters. The majority of individual police officers are not to blame. Law enforcement training and culture, along with lenient court decisions, are the problems. Police academies over-train cadets in violent tactics and undertrain them in peaceful conflict resolution. The academies seem to ignore the well-documented phenomenon of shooter bias, leaving this racial bias against Black Americans intact in cadets instead of attempting to train it out of them. Cadets graduate from police academies with the tendency to imagine they see guns on unarmed Black men, and with training that has taught them to believe that it is safer for them to employ violent and deadly reactions to mild conflicts with citizens than to attempt to peacefully resolve those conflicts. Arguably, these officers are then let loose on our streets with guns and told to do whatever it takes to maintain law and order, with seemingly complete impunity. When one of these officers inevitably shoots an unarmed Black man, prosecutors and the courts almost always declare this unnecessary murder “reasonable,” and choose not to hold the majority of these officers accountable or punish them in any way. The evolving court standard to judge the application of deadly force by police officers has increased the latitude for police officer judgment. The 1984 decision in Tennessee v. Garner set forth a reasonable belief standard for the justification of police officers' use of deadly force. The decision in Thompson v. Hubbard, a 2001 case, added an unreasonable belief aspect to encompass split-second assessments made by police officers that turn out to be incorrect. This has inevitably led to a society where split-second mistaken threat assessments made by police officers, and the factors in police and culture that cause those mistakes, are not questioned or corrected by the court system upon review.

This is the result: from January 2015 to May 17, 2022, 133 unarmed Black men were shot and killed by police officers. In more than eighty murders of unarmed Black people, authorities chose not to press charges. The offending officers were charged with murder in only thirteen of these cases, and only two were ultimately found guilty. An additional seven officers were charged with manslaughter, but, once again, only two were convicted. On the rare occasions when police officers who kill unarmed Black men are charged with murder or manslaughter, their cases almost always end in an acquittal or a dismissal of charges due to the extremely broad and forgiving test of reasonableness that the courts employ. This can be seen in the murders of Timothy Thomas, Ramarley Graham, and countless other murdered Black men whose deaths never receive justice. This is why the tragedy of police shootings of unarmed Black men will likely persist.

The over-emphasis of training cadets in violent methods instead of conflict resolution, a failure to reduce racial shooter bias when training law enforcement officers, and a legal reasonable force standard with wide latitude for police officer judgement have combined to result in a police force that too often shoots unarmed Black suspects, and a court system that condones unjustified shootings of unarmed Black men. These shootings remain a divisive and intractable problem that is too often blamed on individual police officers and the unarmed Black men themselves, when the true fault lies with flawed law enforcement training and culture, coupled with court inaction.

J.D., Albany Law School (2022).