Figuring Out Rules for Officers' Use of Deadly Force Is Harder Than It Sounds

A recent spate of highly controversial officer-involved shootings has sparked passionate debates and vigorous protests over police officers' use of force. As a defense attorney who often sees things from the perspective of those confronted by the police, I share the concern that some officers and agencies are too quick to use force, including deadly force, against suspects and other civilians. At the same time, I believe the issue is more complex than it may look at first glance.

One cornerstone of a society governed by the rule of law is the judging of persons and actions according to rules and standards that have been laid out in advance. So, for example, we don't simply look at each use of force and use our best judgment as to whether the officer involved should face legal sanctions. Instead, we come up with generally applicable rules ahead of time--saying, for example, that an officer can use deadly force when she reasonably believes it's necessary to prevent death or serious physical injury--and then decide whether a particular officer's conduct violated that standard.

If we were starting from scratch and wanted to lay down a rule that would govern future uses of deadly force by police officers, what would that rule be? At the outset, we'd want to acknowledge that erring in either direction could create serious problems. An overly pro-officer rule could lead to excessive and unjustified violence against civilians, with insufficient accountability and little incentive for agencies to train their officers to avoid violence. Going too far in the other direction could put inappropriate psychological "brakes" on officers in situations in which force is genuinely necessary, and could also risk lowering the quality of police forces by making law enforcement careers unappealing to people with other options.

Consider a concrete example. Imagine an officer facing a suspect whom the officer believes may be armed and ready to use deadly force against her. Assume the officer does everything "right," but the suspect doesn't respond as directed, and the situation doesn't provide any alternative means of eliminating the threat. If we're deciding how sure the officer has to be that the suspect poses a threat and that firing her weapon is necessary to eliminate that threat, where's the fair and appropriate place to draw that line? Absolute certainty? Reasonable belief--a common legal term meaning (a) the officer actually believes the threat exists, and (b) a reasonable person observing the same facts and circumstances could have the same belief?

If we go with reasonable belief, are we willing to accept that sometimes reasonable beliefs are wrong and civilians will be killed when their deaths were not in fact necessary? For example, imagine a variation of the horrific Amadou Diallo case. Diallo was an unarmed civilian, confronted by police who allegedly believed he matched the description of an armed, at-large serial rapist. He reached for his wallet and was fatally shot by officers, who later claimed they thought he was reaching for a gun.

Setting aside the merits of the hugely controversial Diallo case itself, it's possible to imagine a situation in which an officer forced to make a quick decision could honestly, genuinely and reasonably--but incorrectly--believe a suspect poses a lethal threat. In that case, how should we decide whether legal sanctions should be available against the officer? Should the standard vary based on the particular legal consequence--for example, whether we're deciding whether the officer should be fired, sued for damages, or criminally charged?

That hypothetical assumes the danger is to the officer herself. Some might want to shade the rule towards the civilian on the theory that the officer has voluntarily entered a high-risk career, so she should be expected to exercise more restraint than an ordinary citizen in using deadly force, even if that increases the risk to herself.

Should it matter if the risk is instead to other civilians? In recent weeks, for example, we've seen an attacker stab multiple civilians in a London underground station, and a gunman threaten customers at a Walmart (the London stabber was arrested; the Walmart gunman was fatally shot). If an officer is present when such a situation arises--for example, when the suspect's knife or gun comes out--how sure should she have to be, and about what, before firing?

Again, the officer may have to make a quick decision based on imperfect and incomplete information. In which direction do we want her to err, and how heavily do we want to push her decision in that direction? And when she makes the "wrong" decision in either direction--allowing an innocent bystander to be attacked, or firing on someone who may not have posed a threat or who could have been subdued by other means--do we accept that decision, or punish her (and if so, how severely)?

Let's add one more wrinkle. In the previous examples, some might suggest erring on the side of deadly force because if there's going to be a risk of harm to someone, it should be the person who deliberately created the situation, and not the innocent civilian. Does this balance change if the person creating the risk is less morally culpable--for example, if he's clearly mentally ill? Do we want officers to exercise more restraint because this person is less blameworthy--or use the same standard because, blameworthy or not, the risk to the innocent victim is still the same?

These are difficult questions to answer even in the abstract, and become much more so in the tense, high-stakes circumstances in which they arise. Some of the recent use-of-force incidents appear to have involved clearly wrongful conduct by officers, but others are more complicated. Sometimes the question is whether the conduct at issue violated an existing standard; other times our criticism is of the standard itself. If it's the latter, we need to think hard about what that standard should be, and how well it addresses the many complex issues involved with officers' use of force.