Police Use of Deadly Force: Law, Policy, and Justification

Introduction

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 officers, citizens, and property, however, 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 guidelines are in place in various jurisdictions throughout the United States and what controlling federal laws apply, this paper reviews the relevant literature concerning the use of deadly force by police, including a definition of the term, a discussion of when such use is regarded as justified, and a discussion of precedential case law. A summary of the research and its key findings follows in the conclusion.

Defining Deadly Force and Its Incidence

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. Approximately 600 criminals are 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. 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 (Russell & Beigel, 1999). Indeed, these authors posit that many police officers are killed because they hesitate to use deadly force due to the enormous implications 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 using deadly force, it is little wonder that some officers tend to hesitate before resorting to it: "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 own detriment or becoming overly aggressive in its application (Hall, 1999).

Legal Sanctions and Constitutional Provisions

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 (c) the Due Process Clause (Hall, 1999). The Fourth Amendment guarantees people the right to be secure in their homes and property against unreasonable searches and seizures, and provides that no warrants shall issue except upon probable 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). The Eighth Amendment, added in 1791, prohibits excessive bail, excessive fines, and cruel and unusual punishment (Black's Law Dictionary, 1990, p. 516). The Due Process Clause appears in both the Fifth Amendment, pertaining to the federal government, and the Fourteenth Amendment, which protects persons from state actions. It encompasses both procedural due process—guaranteeing fair procedures—and substantive due process, which protects a person's property from unfair governmental interference or taking (Black's Law Dictionary, 1990, p. 500).

The application of these constitutional provisions to deadly force cases varies according to circumstances and includes an extension of these rights to cover the taking of life by the government. 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 needed to maintain control of convicted prisoners, framing 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 determine the range of their applications, the same framework has not been uniformly applied to the Due Process Clause (Hall, 1999). According to Hall, "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 both procedural and substantive rights: procedural due process "protect[s] against arbitrary takings" by government, while substantive due process protects 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. Yet the regularity of its use also indicates that the lawlessness involved in some situations absolutely demands it. The historic relationship between deadly force use and encounter type is instructive:

Disturbance calls: 32% | Robbery in progress: 21% | Burglary in progress: 20% | Traffic offense: 8% | Personal dispute and accident: 4% | Stake-out and drugs: 4% (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 directed at the "stake-out and drugs" category, those rates are likely much higher today. What quickly emerges from these trends is just how rapidly even innocuous encounters—such as stops for traffic offenses—can escalate to the point where deadly force is required. It is reasonable to suggest that citizens who are directly involved in a violent encounter with a criminal will view deadly force very differently from those who merely read about it in the newspaper or watch a brief account on television.

People whose lives or whose families' lives are personally touched and saved by police intervention will undoubtedly have a highly favorable view of deadly force use, but there will also be those who question the need—because they were not there—and worry that such force may have been the result of overzealousness or that it might 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 deadly force by police officers extends into the courtroom itself. As Alpert and Smith (1999) note, "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 stemming from a lack of appropriate training. 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 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 when otherwise well-intentioned officers are unable to handle a given encounter without resorting to disproportionate force (Smith, 1994). These dichotomous perspectives are not restricted to the United States, of course, but they appear particularly pronounced here due in part to high-profile mainstream media coverage and to the portrayal of deadly force in contemporary entertainment such as television and motion pictures.

Although popular views about the appropriate role of police in modern America changed somewhat following the terrorist attacks of September 11, 2001—with many Americans accepting the need for heightened security measures even in a free society—the use of deadly force remains preeminent in the debate over the proper role of law enforcement. Klinger (2004) observes that "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 for the use of deadly force. Klinger (2004) 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 enormous property destruction: "Indeed, one of 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 followed was not restricted to those several days of rioting: "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 were also characterized by a great deal of attention to the police use of deadly force. 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, who noted in 1980: "The use of deadly force is the most awesome and frightening duty ever imposed upon a police officer in a democratic society. No other occupational 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 situations 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).

Conclusion

The research showed that the use of deadly force by police officers has received an increasing amount of attention from the courts and the media over the past five decades or so, with a number of precedential cases being decided by the Supreme Court that have provided some guidelines for police officers confronted with life-and-death situations concerning the appropriateness of deadly force use. These guidelines, however, were shown to lack precision—a lack that is further exacerbated by the duality of views concerning when deadly force is justified. Police officers who apply deadly force are faced with profound consequences that can adversely affect them personally as well as the departments they serve.

The research also showed that several constitutional provisions apply to the use of deadly force, including the Fourth Amendment, the Eighth Amendment, and the Due Process Clause. Although guidelines vary from jurisdiction to jurisdiction, all officers must follow common guidelines in the use of deadly force, and most policies include a reasonableness assessment of the specific circumstances involved to determine the appropriateness of deadly force use. The statistics related to the use of deadly force showed that approximately 600 criminals are killed each year by police officers in the United States, while hundreds of police officers are also killed or wounded in the process—indicating the ongoing need for a set of timely, precise guidelines that can help police officers make the split-second decisions that determine whether deadly force is necessary.

References

Alpert, G. P., & Smith, W. C. (1999). How reasonable is the reasonable man? Police and excessive force. Journal of Criminal Law and Criminology, 85(2), 481–501.

Black's law dictionary. (1990). St. Paul, MN: West Publishing Co.

Hall, J. C. (1999, February). Due process and deadly force: When police conduct shocks the conscience. FBI Law Enforcement Bulletin, 68(2), 27–28.

Klinger, D. (2004). Into the kill zone: A cop's eye view of deadly force. San Francisco: Jossey-Bass.

Moore, M. H., & Braga, A. A. (2004). Police performance measurement: A normative framework. Criminal Justice Ethics, 23(1), 3–5.

National Law Enforcement Policy Ctr., Int'l Ass'n of Chiefs of Police, A compilation of model policies §1 (1989–1991) in Alpert & Smith at 485.

Russell, H. E., & Beigel, A. (1999). Understanding human behavior for effective police work. New York: Basic Books.

Urbonya, K. R. (2003). Rhetorically reasonable police practices: Viewing the Supreme Court's multiple discourse paths. American Criminal Law Review, 40(4), 1387–1389.

Winright, T. L. (1995). The perpetrator as person: Theological reflections on the just war tradition and the use of force by police. Criminal Justice Ethics, 14(2), 37–56.