Lethal force laws reexamined after police killings; is reasonableness standard too easy?
Image from Shutterstock.com.
Lawmakers in several states are considering revisions to police lethal force laws following the deaths of George Floyd and others during encounters with officers.
Seth Stoughton, a law professor at the University of South Carolina, told the New York Times in a June 14 article that he has seen “more legislators—federal and state legislators—talking about amending use of force laws, and I’ve seen more laws proposed than I’ve ever seen before.”
In the United States, state laws generally permit police officers to use deadly force when they reasonably think their lives or the lives of others are in danger. Some laws give even more leeway to police, allowing use of deadly force when the officer subjectively thinks such force was necessary, according to GW Today, a publication of the George Washington University.
Now, there is a move to change those laws as lawmakers respond to several high-profile killings by police. One approach is to focus on the reasonableness standard.
In Washington, D.C., the city council adopted a use of force provision—which is temporary, at least for now—that says police use of deadly force is considered justifiable in a criminal case if the officer’s actions, as well as beliefs, are reasonable.
The standard in the Washington, D.C., emergency law incorporates a model statute on policing developed by Cynthia Lee, a law professor at the George Washington University.
“If the focus is solely on the officer’s beliefs, the question the jury usually ends up focusing on is whether the officer’s fear was reasonable,” Lee told GW Today. “Given deeply rooted stereotypes about black people as violent, dangerous criminals, it is too easy for most juries to conclude that an officer’s fear was reasonable when the victim is black.”
The new Washington, D.C., law also incorporates Lee’s proposal to require jurors to consider three factors in such cases: whether the suspect had or appeared to have a weapon and refused to drop it, whether the officer engaged in de-escalation tactics prior to using deadly force, and whether the officer engaged in any conduct before the use of force that increased the risk of a deadly confrontation.
The new proposals follow other waves in which states changed their use of force laws.
According to a 2015 law review article from the St. Louis University Public Law Review, several states changed their laws after the U.S. Supreme Court ruled in a 1985 case, Tennessee v. Garner, involving the common law standard for police use of force. The Supreme Court ruled that the common law standard— allowing deadly use of force to seize a fleeing felon—was “constitutionally unreasonable.”
Tennessee v. Garner was a civil case brought under Section 1983 of the Civil Rights Act and did not involve the standard for criminal law prosecutions of police officers. Many states did change their criminal laws, however. Other states had rejected the common law standard even before the Supreme Court case.
Under the revised laws, police could shoot at felons, but the felons had to be dangerous or to have committed a dangerous felony, according to the law review article.
Georgia law, for example, allows police officers to use deadly force if they reasonably think a felony suspect has a deadly weapon or poses an immediate threat of physical violence, or if the officers have probable cause to think the person committed a crime that involves serious physical harm or the threat of such harm.
Lawyers for Atlanta police officer Garrett Rolfe, who was charged with felony murder in the shooting death of Rayshard Brooks at an Atlanta Wendy’s restaurant, have said the shooting was justified under Georgia law. Brooks had pointed a Taser over his shoulder at officers as he ran away, and that constituted an immediate threat of serious injury that justified the shooting, according to the lawyers.
In Minnesota, where George Floyd was killed, officers may use deadly use of force in three circumstances, Minnesota Public Radio News reports. Such force is allowed to protect others from apparent death or serious harm, to capture a fleeing suspect who used deadly force or threatened it, or to apprehend a suspect who is reasonably thought to pose a continuing fatal threat.
A Minnesota lawmaker wants to change the law to require the threat of death or harm to be “imminent” and to require the officer’s reasonable belief of necessity to be based on the “totality of the circumstances,” according to MPR News.
Students at the International Human Rights Clinic at the University of Chicago Law School collected lethal force policies at police departments in the nation’s largest 20 cities and compared them with international human rights law.
None of the police departments met minimal standards under human rights law, according to the study, published in the University of Chicago Law Review. The policies were in effect during 2017 to 2018.
Standards should require necessity, proportionality and accountability, and they should require officers to protect and enable individual human rights, according to the law review article. In addition, authority for use of lethal force should be provided in a state law that complies with international standards.
None of the cities met a legality requirement because they were in states that did not have a human-rights compliant state law, according to the article. Most policies also failed to meet the requirement for accountability, which requires an effective review process, involvement of an external oversight body, and issuance of a report.
All 20 cities had internal reporting requirements, but only Los Angeles and Chicago required mandatory external reporting for all instances of lethal force.
Twelve city policies satisfied a necessity requirement by requiring immediacy of a particularized threat and the use of force as a last resort. Seventeen city policies satisfied a proportionality requirement by permitting use of force in response to threats to life or serious bodily harm to the officer or others, according to the article.