Police Use of Deadly Force

Police Use of Deadly Force

Since time immemorial, the use of deadly force has been considered justified for self-defense, or for the defense of one's family and even property. When deadly force is used by governmental authorities to protect law enforcement authorities, citizens and property, though, the justification becomes less clear-cut and the appropriateness of such use can be highly subjective. Because most uses of deadly force take place during violent encounters where split-second decisions can mean the difference between life and death for police officers, there must be solid guidelines in place to help police make the right decision at the right time. To determine what type of typical guidelines are in place in various jurisdictions throughout the United States and the controlling federal laws that apply, this paper provides a review of the relevant literature concerning use of deadly force by police, including a definition of the term, a discussion concerning when such use is regarded as justified, as well as a discussion concerning precedential case law. A discussion of these issues is followed by a summary of the research and important findings concerning the use of deadly force by police in the conclusion.

Review of the Literature

According to Black's Law Dictionary (1990), deadly force is "the degree of force that may result in the death of the person against whom the force is applied. Force likely or intended to cause death or great bodily harm; may be reasonable or unreasonable depending on the circumstances" (p. 398). The latter qualification has been the source of much controversy concerning when circumstances do indeed warrant the use of deadly force. As one police officer puts it, "Americans have been both drawn to and repulsed by deadly force since municipal police officers started carrying firearms in the 1850s. Psychologists would tell us that this is so because at some deep subconscious level humans are both drawn to and repulsed by violence of any sort" (Klinger, 2004, p. 8). The extent of the issue is not insignificant either, with approximately 600 criminals being killed by police officers every year (Russell & Beigel, 1999). This estimate is confirmed by Winright (1999) who reports, "Researchers estimate that police officers kill about 600 criminal suspects yearly, shoot and wound an additional 1,200, and fire at and miss another 1,800. This being the case, the issue of the use of force, especially deadly force, by law enforcement officials in the performance of their duties deserves vigilant scrutiny" (p. 37). Further scrutiny of these statistics shows that the vast majority of deadly force applications are justified. For instance, according to Russell and Beigel, "Some of these killings are done in self-defense, some are accidental, and some are to prevent a serious crime. A few represent serious abuses of police power" (p. 366).

Although hundreds of criminals are killed by police officers each year, hundreds of police officers are also killed and wounded each year by criminals in the United States as well (Russell & Beigel, 1999). Indeed, these authors posit that many of these police officers are killed because they hesitate to use deadly force because of the enormous implications that are involved. According to Russell and Beigel, "Many lose their lives in that split second required by the processes of perception, evaluation, decision, and action that every officer exercises prior to using deadly force" (p. 367). Given the implications of the use of deadly force by police officers, it is little wonder that some tend to hesitate before they resort to its use: "Not only do officers have to face the stress from the shooting itself, but they also have to worry whether it will be judged a 'good shooting' by investigators and administrators who will review and judge their every action (or lack of action) in the cold, unemotional reality of the next day" (Russell & Beigel, p. 367). According to Hall (1999), there is an overarching need for clear-cut guidance to help police officers know when and where they should or should not use deadly force: "The critical nature of law enforcement decisions regarding the use of deadly force demands the clearest possible guidance with respect to the legal standards controlling the officers' actions" (Hall, 1999, p. 28). The implications of the absence of such guidance are profound, with officers either hesitating too long to apply deadly force to their detriment or becoming overly aggressive in its application (Hall, 1999).

In most jurisdictions, the use of deadly force by police is subject to at least five legal sanctions:

1. Civil action in a local or state court;

2. Criminal action in a local or state court;

3. Federal civil rights action under Section 1983 of Title 42 of the U.S. Code;

4. Federal criminal action under Section 242 of Title 18; and,

5. Departmental disciplinary action (Russell & Beigel, 1999, p. 367).

In addition, three provisions in the U.S. Constitution apply to the use of force by government officials: (a) the Fourth Amendment, (b) the Eighth Amendment, and the (c) Due Process Clause (Hall, 1999), the relevant sections of which are set forth in Table 2 below.

Table 2

Constitutional provisions related to the use of deadly force

Section

Provisions

Fourth Amendment

Amendment of the U.S. Constitution guaranteeing people the right to be secure in their homes and property against unreasonable searches and seizures and providing that no warrants shall issue except upon probably cause and then only as to specific places to be searched and persons and things to be seized (Black's law dictionary, 1990, p. 657).

Eighth Amendment

Amendment to the U.S. Constitution added in 1791 which prohibits excessive bail, excessive fines and cruel and unusual punishment (Black's law dictionary, 1990, p. 516).

Due Process Clause

Two such clauses are found in the U.S. Constitution, one in the Fifth Amendment pertaining to the federal government, the other in the Fourteenth Amendment which protects persons from state actions. There are two aspects: procedural in which a person is guaranteed fair procedures and substantive which protects a person's property from unfair governmental interference or taking. Similar clauses are found in most state constitutions (Black's law dictionary, 1990, p. 500).

The application of these constitutional provisions to deadly force cases also varies according to circumstances and includes an extension of these rights to include the taking of life by the government. For instance, according to Hall, "By its explicit terms, the Fourth Amendment prohibits unreasonable searches and seizures. Accordingly, the U.S. Supreme Court has held that within the context of arrests or other seizures of persons, the use of deadly force by police officers must be 'objectively reasonable, in light of the facts and circumstances confronting [the officers]...judged from the perspective of a reasonable officer on the scene...rather than with the 20/20 vision of hindsight'" (cited in Hall at p. 27). Likewise, the Eighth Amendment specifically prohibits "cruel and unusual punishments" and based on the specificity of this clause, the Supreme Court has maintained that the Eighth Amendment controls the use of force that is needed to maintain control of convicted prisoners and has framed the issue as "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm" (quoted in Hall at p. 27). Although the Fourth and Eighth Amendments have provided the framework in which courts have determined the range of their applications, the same framework has not been used with the Due Process Clause (Hall, 1999). According to this authority, "As stated in the Fifth and Fourteenth Amendments, the Due Process Clause prohibits the federal and state governments, respectively, from depriving any person of 'life, liberty, or property, without due process of law'" (cited in Hall at p. 27). Historically, the Supreme Court has held that the due process concept includes procedural as well as substantive rights with procedural due process "protect[ing] against arbitrary takings" by government and the substantive due process protections being against "government power arbitrarily and oppressively exercised" (cited in Hall at p. 27).

Taken together, the foregoing sanctions and constitutional provisions make it reasonable to suggest that most police officers will seek to resolve a criminal encounter without the use of deadly force if at all possible, but the regularity of its use also indicates that the lawlessness involved in some situations absolutely demands the use of deadly force. The association between deadly force encounters to the degree of lawlessness involved is shown by the following analyses of the situations in which they have historically occurred in Table 2 and Figure 1 below:

Table 2

Historic relationship between deadly force use and the type of encounter

Type of Encounter

Percentage of Deadly Force Use

Disturbance calls

32%

Robbery in progress

21%

Burglary in progress

20%

Traffic offense

8%

Personal dispute and accident

4%

Stake-out and drugs.

4%

Source: Russell & Beigel, p. 367

Figure 1. Historic relationship between deadly force use and the type of encounter

Source: Based on tabular data from Russell & Beigel, p. 367

Although the incidence of deadly force use has likely remained steady in the first five categories, Russell and Beigel emphasize that based on the increased attention being directed at the "stake-out and drugs" category, these rates are likely much higher today. What quickly emerges from these foregoing trends, though, is just how quickly even innocuous encounters such as stops for traffic offenses with ordinary citizens can escalate to the point where deadly force is required by police officers. It is reasonable to suggest that when citizens are directly involved in a violent encounter with a criminal, their views of deadly force will be vastly different from those citizens who merely read about the event in their newspapers or watch a brief account on television. People whose lives or whose families' lives are personally touched and saved by the intervention of police and their use of deadly force against criminals will undoubtedly have a highly favorable view of such use, but there will also be those who question the need because they were not there and worry that such deadly force might have been the result of overzealousness or that such deadly force may be directed against them by accident in the future. In this regard, Klinger (2004) adds that, "Our schizophrenic posture toward police shootings springs also from a deep cultural well. Our nation has a long-standing tradition of clamoring for government protection from the actions of criminals, while at the same time rebelling against the constraints that those protective activities place on our lives" (p. 8). Likewise, Alpert and Smith (1999) point out that, "The authority of the police to use force represents one of the most misunderstood powers granted to representatives of government. Police officers are authorized to use both psychological and physical force to apprehend criminals and solve crimes" (p. 481).

The duality of views about the use of deadly force by police officers extends into the courtroom itself. As Alpert and Smith (1999) point out, "It is likely that many reasonable and even highly-skilled officers would respond similarly in a given factual scenario that a jury has determined to be unreasonable conduct" (p. 482). There is also a duality of distinctions between deadly force based on its willful and intentional use by police officers and its use based on a lack of appropriate training. For instance, Smith (1994) reports that, "Discussions of police violence are often blurred by the failure to distinguish between violence that is clearly extralegal and abusive and violence that is simply the necessary result of police incompetence. This distinction is important because the causes of these two types of violence, and the motivations of the officers involved, vary greatly" (p. 485).

On the one hand, extralegal violence occurs in those encounters where police officers willfully and wrongfully use force that they know exceeds the boundaries of their official offices; on the other hand, unnecessary violence takes place during those encounters when otherwise well-intentioned police officers are unable to handle a given encounter without resorting to unnecessary force (Smith, 1994). These dichotomous perspectives concerning the use of deadly force are not restricted to the United States, of course, but they do appear to be particularly pronounced in this country due in part to the high-profile mainstream media coverage of such events and the portrayal of deadly force in contemporary entertainment venues such as television and motion pictures.

Although popular views about the appropriate role of a police force in modern America changed somewhat following the terrorist attacks of September 11, 2001, with many Americans recognizing and accepting the need for heightened security measures, even in a free society, but the use of deadly force remains preeminent in the debate over this proper role. Indeed, a good many Americans today may not even remember the events of the last 50 years or so that contributed to this debate today. According to Klinger, "In recent years, this sense of disquiet about deadly government power has repeatedly been expressed in the form of social unrest. A good many of the major civil disturbances (and many of the smaller ones) that have erupted in our nation in the last four decades have been spawned by anger over law enforcement activity, often the use of deadly force" (p. 8).

This anger has been especially manifested by minority groups who believe they have been singled out by police officers for the use of deadly force. For example, Klinger notes that when deadly force was used against a minority member in New York City during the early 1960s, the backlash caused another death, numerous injuries and an enormous amount of property destruction. In this regard, Klinger (2004) writes, "Indeed one the first large-scale riots of the tumultuous 1960s occurred in July 1964, after an off-duty New York City police lieutenant fatally shot a black teenager who attacked him with a knife. Two days later, a riot that claimed one life and caused nearly two dozen injuries broke out when a crowd marched on the local police station house to protest the shooting" (p. 8).

The social unrest that resulted from the teenager's death was not restricted to these several days of rioting, either: "The rioting spread, and over the next few days the police battled brick-tossing crowds, and firefighters doused flames set by Molotov cocktails in the minority enclaves of Harlem and the Bedford-Stuyvesant area of Brooklyn" (Klinger, 2004, p. 8). The years that followed this event were also characterized by a great deal of attention over the police use of deadly force. For instance, in their text, Understanding Human Behavior for Effective Police Work, Russell and Beigel (1999) emphasize that, "Police officials are very aware of the problems inherent in the use of deadly force," and cite comments from Chief Joseph S. Dominelli, president of the International Association of Chiefs of Police, in 1980 who noted: "The use of deadly force is the most awesome and frightening duty ever imposed upon a police officer in a democratic society. No other occupation group, outside of military forces in wartime, is authorized by law to make a life and death decision under the split-second pressure of circumstances facing the police officer at the time he reaches for his service weapon" (quoted in Russell & Beigel, 1999 at p. 366). Likewise, during the 1980s, the Supreme Court first balanced the various competing interests involved to determine that police officers were authorized to use deadly force in order to seize a fleeing suspect, but only in those situation in which the officers had probable cause that the suspect had "committed a crime involving the infliction or threatened infliction of serious physical harm" or posed a threat of "serious physical harm, either to the officer[s] or to others" in Tennessee v. Garner (471 U.S. 1, 1985) (cited in Urbonya, 2003, p. 1387).

Based on the foregoing trends, police department policies in the 21st century have sought to develop basic guidelines that can be used by police officers to evaluate the appropriateness of deadly force applications; these guidelines also serve as constraints on the use of deadly force in an effort to minimize police officers' and their department's exposure to liability (Albert & Smith, p. 485). According to these authorities, "Perhaps the most influential policy on the use of force is the Model Policy developed by the International Association of Chiefs of Police (IACP)" (Alpert & Smith, p. 485). With regard to the use of deadly force, the IACP's policy stipulates as follows: "[P]olice officers shall use only that force that is reasonably necessary to effectively bring an incident under control, while protecting the lives of the officer or another.... Police officers are authorized to use department-approved nondeadly force techniques and issued equipment for resolution of incidents, as follows: (a) to protect themselves or another from physical harm; or (b) to restrain or subdue a resistant individual; or to bring an unlawful situation safely and effectively under control" (cited in Alpert & Smith at p. 485). The IACP guidelines, though, do not provide any guidance concerning the meaning of the term "reasonably necessary" nor does it provide any method for its interpretation; however, the guidelines discuss the "reasonable man" as follows: "The model policy adopts the 'reasonable man' standard in this and similar contexts to establish whether an officer's actions under given circumstances were justifiable" and asks, "What would reasonable police officers do under the same or similar circumstances?" (cited in Albert & Smith at p. 486). Once again turning to Black's, the legal definition for the reasonable man doctrine provided is, "The standard which one must observe to avoid liability for negligence is a standard of the reasonable man under all the circumstances including the foreseeability of harm to one such as a plaintiff" (p. 1266).

The guidelines provided by the IACP, though, do not make a distinction between the "reasonable man" and a "reasonable police officer"; likewise, the guidelines do not include an assessment about innovations in technology and the changes these have created for the use of deadly force today which may be dramatically different than just a few years ago (Albert & Smith). According to Albert and Smith, "The well-trained police officer may view the dynamics in a police-citizen encounter differently than a non-officer or even a poorly trained officer. Similarly, the well-trained officer may come to a different conclusion than others about what is necessary and reasonable to resolve the encounter" (p. 486).

Given the highly subjective nature of the appropriateness of the judgment call of a police officer on the scene when viewed from supervisory staff's perspective later, there is a clear need for some type of objective measures that can be used to more accurately assess the use of deadly force. The use of such objective measures could also help the general public as well as media representatives and the courts assess the appropriateness of the use of deadly force incidents rather than the second-guessing that characterizes the process today. This need is consistent with the observation made by Moore and Braga (2004) that, "Citizens have long wanted a reliable measure of police performance. They want to know whether the police are producing something that is valuable with the assets entrusted to them. They want to be able to hold the organization to account for its performance" (p. 3). One useful way to make such an assessment is by carefully examining the antecedents to the deadly force application, including the circumstances that existed prior to the application such as the behavior of the police officer and the rationale used to formulate a decision to use deadly force. According to Alpert and Smith (1999), the fundamental concerns must be addressed as follows:

1. How the police officer determines if a threat exists;

2. How the police officer determines the seriousness of the threat; and,

3. How the police officer controls or removes the threat.

Although a precise threat assessment is not amenable to scientific analysis, the studies to date concerning police officers and the sequence of events that are used in their decision-making processes provide useful vignettes that can assist police in evaluating a given threat and can help others in their analysis of the appropriateness of the police use of deadly force; in this regard two additional types of threats must be assessed: (a) escape and (b) physical threat (Alpert & Smith, 1999). These two types of threats are described further in Table 3 below.

Table 3

Critical types of threats requiring assessment for the use of deadly force

Type of Threat

Factors Involved in Police Response

Escape

If a suspect is attempting to flee a police officer, what force can an officer use to apprehend the suspect? Two examples may help answer the question: (a) if a suspect is running away from the officer and has not posed an imminent threat to the officer or a citizen, then reasonable force may not include the shooting of the suspect; and (b) if a suspect is attempting to escape from an officer who is fighting with the suspect, reasonable force may include only enough effort to constrain the suspect without using what would be considered deadly force such as a choke hold, strike to the head with a weapon, knee on the neck, etc.

Physical Threat

The second type of threat requiring analysis is a threat of violence, great bodily harm, or death. If a suspect threatens officers or citizens, then those officers must act to protect themselves or the public. In this scenario, the perception of the officer is critical. For example, if an officer perceives a suspect pointing a gun and it turns out to be a toy gun, it is the perception that is important rather than the intent of the suspect or the fact that a toy gun does not represent a real threat. If there is a realistically perceived threat that a suspect is placing a life in imminent danger, then officers can take the life of a suspect to protect their own lives or that of an innocent bystander. However, this scenario becomes complicated if either the suspect is in a location or a position in which the use of deadly force or force sufficient to constrain the suspect by an officer might place other lives in danger, or if the threat is not genuine. An officer will have to rely on available information, training, and available alternatives before employing force significantly dangerous to the public.

Source: Alpert & Smith, p. 485.

As to the first type of assessment concerning escape, there are several issues that must be determined in making a decision concerning the appropriateness of the use of deadly force by police officers, including whether criminal suspects should be allowed to escape based on the expectation that they will not harm others and what level of force is appropriate to the situation. In this regard, Alpert and Smith caution that, "Unfortunately, a police officer cannot always recognize when a suspect is merely trying to escape or is willing to harm someone" (p. 486). From a strictly pragmatic perspective, Alpert and Smith suggest that, "In reality, criminal offenders may attempt to escape from custody if no physical force or threat of real force were available. Police must be permitted to use some degree of force to take suspects into custody and, as long as suspects continue to fight and resist, the police will be authorized to use force to apprehend them" (p. 486).

In making the decision to try to apprehend a criminal suspect, though, police officers must also take into account the seriousness of the original offense that was involved; it is likely that a far different outcome will take place with a jaywalker than an armed robbery suspect. Finally, history has shown that the bad guys will always try to get away and the good guys will have to use force in some cases to stop them. Consequently, the assessment of the appropriateness of the use of deadly force by police officers must be viewed in the full context of the situation, including the various stages in which the application of deadly force took place. As Alpert and Smith point out, "At a minimum, all officers must follow common guidelines [but] it is important to look at events which transpired before the final act or acts of force to determine reasonableness in either an escape or threat situation" (p. 486). The need to analyze police use of deadly force in stages has been recognized for more than 40 years because it provides a useful framework in which this full context can be developed (Alpert & Smith, 1999). For this purpose, Alpert and Smith provide a three-stage analytical framework for use in deadly force situations. According to these authors, "In many situations, the police officer has time to make decisions. Normally, these decisions permit a three-frame analysis of police behavior" (p. 486). A description of these three frames and their use in assessing the appropriateness of police use of deadly force is provided in Table 4 below.

Table 4

Three-stage analytical framework for appropriateness of police use of deadly force

Stage

Description

Stage One

This stage includes activities prior to any contact with the suspect. These activities include the approach to the scene, the accumulation of tactical information, and taking cover. These activities are concerns for officer and departmental negligence, but are irrelevant in the determination of a constitutional violation in some jurisdictions.

Stage Two

The second stage consists of actions and behavior conducted "immediately prior" to the use of force and begins when the police officer makes contact with the suspect, either physical, verbal, or visual. A police officer's actions and reactions during the interaction with the suspect creates an environment which can escalate or de-escalate the potential violence of an encounter and can be included in the analysis of reasonableness.

Stage Three

The final stage is the decision and use of force which causes the injury. This frame can include any force, such as the discharge of a firearm or the use of a chokehold, baton, fist, or other weapon.

Source: Alpert & Smith, p. 486

An important point that is not specifically included in this three-stage analytical framework is the need to view all of the events in the unique context in which they occurred. For instance, Alpert and Smith emphasize that, "A use of force application may be justified but avoidable" (p. 486). While this type of assessment reflects a good deal of second guessing again, the fact that these authors mention it indicates that the point at which the use of deadly force might have been prevented may have been overlooked as a result of other extenuating circumstances that remain unknown during the investigation and underscores the need to gather as much information about a deadly force incident as possible before formulating any opinions about the circumstances.

By collecting as much information from all of the participants involved as possible, a more enlightened analysis of the event can be achieved that takes into account the police officer's reasoning in making the decision to apply deadly force. In this regard, Alpert and Smith emphasize that, "Officers must make a split-second decision to save themselves or someone else from serious bodily harm. In this predicament, the officers' actions and the force employed will be easier to analyze than in an incident in which the preliminary stages are also in question" (p. 486). The data collection and analysis are also important steps in developing timely and solid guidelines that police officers need to be able to respond to life- or property-threatening events appropriately. In this regard, Alpert and Smith conclude that, "The more information known about a situation, the approach made by the police, and the placing of officers in a safe situation to avoid a threat and prevent a stress situation will probably decrease the likelihood of violence and the need to use force more than any other strategy" (p. 487). To this end, Alpert and Smith note that the research to date indicates that a minimum of five layers of analyses are required in order to accurately evaluate the use of deadly force by police: (a) the organizational atmosphere of the agency; (b) the situation; (c) the environment; (d) the participants and their relationships; and (e) any sustained injury, and these layers are described further in Table 5 below.

Table 5

Five layers of analyses required for the evaluation of deadly force by police

Layer of Analysis

Description

Organizational atmosphere

The culture or normative expectations of officers in the police agency may influence the level of force that they deem reasonable. Police culture plays a significant role in the consent or sanction of force.

The situation

The information from situational variables which needs to be collected and analyzed includes the character of the offense for which the suspect is wanted, the behavior of the citizen(s), and the characteristics of the citizens. For example, a violent felony, which may justify the use of severe or even deadly force, must be analyzed with different tolerance levels than a minor property offense. The seriousness of the offense will determine the amount of force which can be justified. The suspect's actions toward the officer or a citizen must be appraised to determine if a threat existed.