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excerpted from: Cynthia Lee, Reforming the Law on Police Use of Deadly Force: De-escalation, Preseizure Conduct, and Imperfect Self-defense, 2018 University of Illinois Law Review 629 (2018) (353 footnotes)(Full Document)


cynthia leeIt seems that we have reached a point of crisis in policing. Every month, sometimes every week, we hear about yet another police shooting involving a victim who, often, is Black. With all the protests over the killing of Blacks at the hands of police, starting with the 2014 shooting of Michael Brown by Officer Darren Wilson in Ferguson, Missouri, the nation's attention has been focused on reforming policing practices. Yet, officer-involved shootings keep happening. In the vast majority of these cases, the person shot by the police had a weapon and the shooting would be considered justified under existing law. In several recent shootings, however, the person shot did not have a weapon, raising questions about whether the shooting was in fact justified.

Until fairly recently, police officers seemed to enjoy an immunity from scrutiny for fatalities resulting from officer-involved shootings. Very few officers were ever prosecuted after shooting and killing a civilian. When an officer was criminally charged or sued in civil court, judges and juries, more often than not, would find in favor of the officer. In part, this was because of a tendency to believe the officer's version of events, especially when there was little evidence contradicting that version. The deceased suspect could hardly testify to the contrary. Additionally, the law encouraged such favoritism.

This country has seen an increase in the number of officer-involved homicide prosecutions over the last several years. This increase in prosecutions may be due to the proliferation of cell phones and the ability of ordinary citizens to capture police encounters on video. Additionally, more and more police departments are utilizing body-worn cameras and dashboard cameras, which can provide a record of what happened during an officer-involved shooting. This increase in prosecutions may also be due, in part, to the fact that over the last three to four years, activists demonstrating under the moniker "Black Lives Matter" have called the nation's attention to the deaths of many unarmed Blacks at the hands of police and have demanded more police accountability. Despite the increased number of prosecutions in recent years, it is still the case that law enforcement officers are rarely convicted.

The Black Lives Matter movement started an important national conversation on policing that continues today. This Article seeks to contribute to this national conversation in a small way by evaluating the current law on police use of deadly force and suggesting a modest change to that law. In many respects, my proposal for reform is less of a radical change in the law regarding when an officer's use of deadly force is justifiable, and more of a clarification of the normative underpinnings of that law. My model statute goes beyond current law by broadening the time frame the law considers relevant when assessing the reasonableness of an officer's use of deadly force so the law can influence police behavior before the moment in time when an officer is fearing for his life. It does so by explicitly directing jurors to consider any preseizure conduct by the police that increased the risk of a deadly confrontation. In another departure from current law, my model statute explicitly encourages jurors to consider whether the officer sought to use de-escalation measures prior to using deadly force and, as part of that inquiry, whether less deadly alternatives were feasible prior to the use of deadly force.

This Article will proceed in two main parts.

In Part II, I examine the current law on police use of deadly force. I highlight problems with both the constitutional standard and state use-of-force statutes.

In Part III, I offer one fairly modest proposal for reform, a model statute on police use of deadly force that I hope will be adopted by state legislatures. I show how my model statute might make a difference, using the Tamir Rice case as an example, then respond to possible objections. While much of my previous work has offered race-specific proposals for reform, the model statute I offer here is race neutral for two reasons. First, the problem I am addressing in this Article transcends race. Second, I believe legislators are more likely to enact legislation that does not appear to grant special treatment to racial minorities.

It is important to note that no one reform proposal will solve what is essentially a structural problem. This is not a matter of just a few "bad apples" misbehaving, as some seem to believe. Only a multiplicity of reforms will lead to lasting structural changes in policing. In a previous article, I focused on reform at the departmental level. I proposed the use of high-definition simulators coupled with a shooting program aimed at both reducing racial bias and increasing accuracy in the decision to shoot. I also recommended that police officers be required to engage in regular and ongoing traditional martial arts training as a way to train officers to remain calm in situations of danger and to minimize the impulse to shoot. Traditional martial arts training, which usually includes meditation before and after each practice, could help officers remain calm in dangerous situations and hone their intuitive skills, which could help officers better identify truly dangerous individuals, choose the right course of action, and increase their confidence and ability to handle combative suspects.

In this Article, I focus on doctrinal reform, suggesting model legislation on police use of deadly force. Existing statutes on police use of deadly force tend to focus on the reasonableness of the officer's belief in the need to use force. I argue that the law should be reformed to include a focus on the reasonableness of the officer's actions. Under my model statute, for a shooting to be considered justifiable, both the officer's beliefs and actions must have been reasonable. To provide better guidance to juries than current use-of-force statutes, my model statute specifies three factors the fact finder must consider when deciding whether the officer believed and acted reasonably: (1) whether the victim/suspect had or appeared to have a weapon (and whether he or she refused orders to drop it), (2) whether the officer engaged in de-escalation measures prior to using deadly force, and (3) any preseizure conduct by the officer that increased the risk of a deadly confrontation. Tracking traditional self-defense doctrine, the model statute I propose explicitly requires necessity, proportionality, and attention to the immediacy of the need to use deadly force.

My model statute also imports the concept of imperfect self-defense into the police use of force arena. If the jury finds that an officer's belief in the need to use deadly force was honest but unreasonable, or if the jury finds that the officer's belief was reasonable but that his use of deadly force was unreasonable, the jury may acquit the officer of murder and find him guilty of voluntary manslaughter.

I recognize the limits of criminal prosecution as a vehicle for police reform. As my colleague Mary Cheh has noted: "Criminal law can punish, and in some instances, deter police brutality, but it cannot of itself force fundamental change in how a department is run, supervised, led, and made accountable." Because criminal prosecutions of police officers "occur within a structure designed to protect individual defendants through procedural safeguards, including rights to counsel, to confront witnesses, to a jury and against self-incrimination and, most important, the requirement that the government prove guilt beyond a reasonable doubt," many of these officer-involved shooting prosecutions result in either a hung jury or a not guilty verdict.

Changing the law on police use of deadly force may not have an immediate impact on what judges and juries do in homicide prosecutions involving police officers claiming that they acted in self-defense. Results will vary depending on the jurisdiction, as different communities have differing views on police, but many judges and jurors will not want to convict an officer who used deadly force thinking his or her life, or the life of another person, was in danger. Many juries will continue to acquit police officers no matter what the legal standard is, except, perhaps, in the most egregious cases where there is clear evidence that the victim/suspect did not pose a threat of danger to the officer or anyone else. Judges and jurors know that police officers have a difficult job to do. They may feel it is unfair to send an officer to jail if the officer employed deadly force believing it was necessary to protect his or her life or the life of another person.

Despite the fact that reforming the law on police use of deadly force may not result in more guilty verdicts, it may encourage police officers on the ground to act with more care before using deadly force, which should be the ultimate goal. We want police officers to exercise appropriate care and caution before using deadly force. The instinct to defend oneself will always be present in any situation when an officer is contemplating the use of deadly force. Reforming the law in a way that encourages the use of deadly force only when it is proportionate and necessary can provide a useful counter to that self-preservation instinct.

Even though the changes in the law I am proposing may not have an immediate impact on jury verdicts in officer-involved shooting cases, changing the law may influence what juries do in the long run. Today, jurors may feel that an officer's use of force was not appropriate, but because the current legal standard suggests that an officer is justified as long as his belief in the need to use such force is reasonable, jurors may feel they must acquit. By requiring juries to find that both the officer's beliefs and actions were reasonable, my model statute focuses the jury's attention on whether the objective facts suggest that the officer's response was proportionate and necessary.

Changing the law may also encourage prosecutors to bring charges against police officers who shoot and kill under questionable circumstances. Prosecutors today are often reluctant to bring charges against officers, even when the circumstances surrounding a shooting suggest that it was not a justifiable shooting, for a host of reasons. Prosecutors may consider police officers to be "on the same team," which may bias them in ways they do not even realize. Prosecutors may fear that police officers will retaliate by refusing to testify favorably in other cases if one of their own has been charged. Prosecutors may also be concerned about bringing charges when the chances of success are very small. Current law contributes to this concern by favoring the officer at almost every step of the way. My model statute tries to be more balanced than current law, giving prosecutors a better chance at securing a conviction in cases where a conviction is appropriate.

Much of what I am proposing is already part of many police department regulations, which do not have the force of law and are unenforceable. The things I suggest juries should be directed to consider when assessing the reasonableness of an officer's use of force are measures that many police chiefs acknowledge are critically important. The advantage of my model legislation, if adopted by state legislatures, would be that it would have the force of law. Because of its enforceability in a court of law, an enacted statutory provision would have far more potential to shape police culture than internal police regulations.

My model statute responds to a call to action raised by NYU law professor Barry Friedman in his recently published book, Unwarranted: Policing without Permission. Professor Friedman, the lead reporter on the American Law Institute's current Policing Project, observes that we are quick to criticize the police but fail to recognize the extent to which we are to blame for problematic policing practices. We are at fault, according to Professor Friedman, because we--or, more accurately, our legislators--have not written rules to govern police practices, but have allowed the police to police themselves. My model statute is one attempt to provide better rules to govern police use of deadly force

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Our nation's police officers are entrusted with power and authority that the average civilian does not possess. When an officer uses that power to shoot an individual, that officer's decision to use deadly force should be carefully evaluated to ensure that it was the appropriate choice of action under the circumstances. "The use of force, including deadly force, is at once necessary to achieve law enforcement goals and contrary to the core mission to protect life." Making sure the law allows police officers to use deadly force only when such force is necessary and proportionate is critically important, especially today when public confidence in police is at a historic low. My model statute responds to the need to restore public trust in police in communities where that trust has eroded.

Cynthia Lee is the Charles Kennedy Poe Research Professor of Law at The George Washington University Law School