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Excerpted from: Cynthia Lee, Race, Policing, and Lethal Force: Remedying Shooter Bias with Martial Arts Training, 79 Law and Contemporary Problems 145 (2016) (184 Footnotes) (Full Document)


cynthialeeOn November 24, 2015, the city of Chicago released dashboard camera video footage of the shooting of a seventeen-year-old Black male teenager named Laquan McDonald by Jason Van Dyke, a police officer with the Chicago Police Department. The video shows McDonald strolling down the street, holding a knife in his right hand by his side. McDonald does not appear to be threatening anyone. In fact, there is no one within his striking distance. Seconds later, we see a small figure to the left of the screen, pointing a gun in McDonald's direction. A shot rings out, and McDonald falls to the ground. Then, the popping sound of several more gunshots--a total of sixteen shots in fifteen seconds--and the sight of McDonald's body twitching as he is shot over and over while lying on the ground. The fatal shooting of Laquan McDonald occurred in October 2014, but the City of Chicago refused requests to release the video for over a year. The video was not made public until November 2015, when a judge ordered its release. The footage sparked outrage and protests as McDonald's fatal shooting was yet another in a string of highly publicized shootings of Black males by police officers, including the August 2014 shooting of 18-year-old Michael Brown in Ferguson, Missouri; the November 2014 shooting of 12-year-old Tamir Rice in Cleveland, Ohio; and the April 2015 shooting of 50-year-old Walter Scott in North Charleston, South Carolina.

Official governmental data on the exact number of fatal police shootings that occur annually in the United States is woefully lacking. Until fairly recently, government data suggested that approximately 420 persons are killed in police encounters each year. Nongovernmental sources, however, indicate that the actual number of persons killed each year by police is probably double that figure. For example, multiple sources report that over 1,000 individuals were killed by police in the United States in 2015. Other sources suggest more than one thousand individuals were killed by police in the United States in 2014 as well.

The BlackLivesMatter movement has been instrumental in calling the nation's attention to the fact that many of those shot and killed by police officers are Black. Approximately one-quarter of the individuals killed by police in 2015 were Black, even though Blacks constitute only thirteen percent of the total population in the United States. In 2014, Black individuals in general were at least three times more likely than White individuals to be killed by a police officer. In 2015, young Black men between the ages of fifteen and thirty-four were at least nine times more likely than other Americans to be killed by police officers.

The vast majority of the individuals shot and killed by police are armed. In many of these cases, especially those involving suspects pointing a gun, replica gun, or toy gun that looks like a real gun at an officer or another person, or refusing to drop a weapon after a police directive to do so, courts consider the officer's use of deadly force to be justified.

When an individual is unarmed, there is usually less justification for using deadly force. Of course, an unarmed individual can pose a threat of death or serious bodily injury to a police officer or others. For example, an unarmed individual high on Phencyclidine, or PCP, can kill or seriously wound an officer, even without a weapon. An unarmed individual in close proximity to an officer can grab the officer's gun and use it against the officer. Nonetheless, when a police officer shoots an unarmed suspect or a suspect armed with a knife rather than a gun, the shooting is more likely to raise questions about necessity and proportionality than when an officer shoots an armed suspect.

Disturbingly, a disproportionate number of the unarmed individuals who are shot and killed by police are Black. In 2015, Black men accounted for approximately forty percent of the total number of unarmed individuals shot and killed by police even though they constituted just six percent of the population. In 2015, unarmed Black men were seven times more likely than unarmed White men to die by police gunfire and “an unarmed black man was fatally shot by police about once every nine days.”

When an officer shoots an unarmed individual under the mistaken belief that the person is armed, the shooting suggests threat perception failure. “Threat perception failure” is a term of art used to describe a situation when an officer thinks a suspect is armed when in fact the suspect is not armed. Associate Professor of Criminology Lorie Fridell explains that threat perception failure is more likely to occur when a police-citizen encounter involves a Black suspect than when it involves a White suspect because of deeply rooted stereotypes linking Blacks with crime. In many cases, police officers have shot and killed Black individuals because they mistakenly believed those persons had a gun. These shootings were not necessarily the result of conscious racism. Deeply rooted stereotypes that link Blacks with violence, danger, and criminality may have influenced these officers to perceive a weapon or threat to life where none actually existed.

In a previous paper, I documented numerous cases in which police officers, mistakenly thinking the individual was armed and dangerous, shot and killed unarmed Black men and women. In this article, I explore the social science research on race and the decision to shoot. By and large, this research demonstrates that most individuals are quicker to see a weapon when dealing with a Black suspect than when dealing with a White suspect. Interestingly, several shooter bias studies have found that police officers are better than civilians at deciding when to shoot, suggesting that training and experience can improve accuracy and reduce racial bias in the decision to shoot. In light of this research, I offer two modest proposals for reform aimed at improving the training requirements for police officers.

First, I propose that police departments implement training aimed at improving accuracy and reducing bias in the use of deadly force. Fortunately, the social science research suggests that police officers can be trained to both reduce racial bias and increase accuracy in decisions to shoot. As discussed within, studies have shown that repeated exposure to Black and White suspects when race is not a diagnostic cue as to whether the suspect is holding a gun results in less biased and more accurate decisions about when to shoot.

Second, I propose that police departments mandate ongoing traditional martial arts training for all officers. Such training would be beneficial for many reasons. Regular training in the martial arts would give officers more confidence in their ability to handle volatile situations without immediately resorting to the gun. Such training would also provide officers with a healthy way to relieve stress. Regular martial arts training would also promote mental and emotional stability.

. . .

The August 2014 shooting of Michael Brown by Officer Darren Wilson in Ferguson, Missouri triggered a national conversation about race and policing that continues today. Even though the “hands up, don't shoot” narrative that became a rallying cry for BlackLivesMatter protesters was later discredited by a Department of Justice investigation into the shooting of Michael Brown, this conversation is important because shootings of minority victims can provoke mistrust between community members and the police and lead to civil unrest. The community may perceive the police as racist even when an individual officer might have been acting justifiably. And the police, in turn, might hesitate to intervene in situations involving criminal activity even when police such intervention would be appropriate.

This conversation about race and policing should be of concern to everyone because problematic shootings by police cost taxpayers millions of dollars in settlements arising from civil lawsuits. These monies could instead be going toward improving social services, schools, and jobs. The need for reform of policing practices, however, transcends race. Almost half of all individuals shot and killed by police each year are White.

In recognition of these realities, this article proposes two ways to enhance the training that police officers currently receive. One reform proposal--training in the use of force aimed at reducing racial bias and improving accuracy in the decision to shoot--directly responds to the numerous studies suggesting that police officers, like citizens, are quicker to see a weapon in the hands of a Black person than in the hands of a White person. The other, recognizing that the need for reform transcends race, is race neutral: police officers should be required to engage in regular and ongoing weaponless martial arts training. These are modest proposals for reform, but if either of these reforms can save even one life, they will have been worth the effort.

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