Today’s topic has been on a lot of minds lately: police use of deadly force. I’m not going to discuss the hottest issue, which has to do with aspects of racial bias. I’m also not going to address the equally important issue of deadly violence against police. Instead, I’m going to tackle a basic question: When can police use deadly force?
It’s weird—how many jobs allow a person to take another person’s life without going to prison? I think even the most ardent pacifist or civil libertarian would agree that police officers should be allowed to use deadly force under some circumstances. And even the most hard-nosed tough-on-crime person would agree that we ought to have clear and strict standards for the use of deadly force.
The old rule, going back to Jolly Olde England, was that police could use deadly force to stop a fleeing felon. But that rule evolved back in the days when the force in question was coming from an arrow or a blade, not a semiautomatic rifle. And back then, all felonies brought a potential death sentence.
The US Supreme Court narrowed the rule in 1985 due to a case in which an officer shot and killed an unarmed 15-year-old burglar who was trying to climb a fence. In Tennessee v. Garner, the court held that police could use deadly force to stop a fleeing felon only when that force is necessary to stop him and police reasonably believe the suspect poses a serious threat to police or others. In other words, if cops have a choice between shooting an unarmed suspect whom they don’t believe is dangerous or letting him escape, they need to let him escape.
Even when someone is not suspected of a felony or isn’t fleeing, police can use deadly force if they reasonably believe the person poses a serious risk to them or to others. This isn’t actually a special rule for police; it’s just a specialized application of the general self-defense rules.
But all this raises two questions. First, what is deadly force? Basically it’s any force that could reasonably lead to a person’s death. Firearms are always going to count as deadly force, even if the person using them attempts to aim for non-lethal injury. Even the best sharpshooter can’t always hit an exact spot on a moving target, and anyway, a person could potentially die from shock or blood loss even if not hit in a vital organ. Besides, as a matter of practice, police are taught to aim for the center of the body because it’s an easier target than the limbs.
You don’t need a gun for lethal force, though. A blade would certainly do it. Explosives. A motor vehicle. Or a blunt instrument like a club or stick, depending on how it was used. Even a sharp pencil could be deadly force if it’s aimed at an eye or throat.
Sometimes other kinds of force can unexpectedly turn deadly. Choke holds, for example, aren’t supposed to be lethal but have resulted in many deaths, which is why quite a few police departments prohibit them. Some people have died from pepper spray. Several years ago, police in a town near me used a Taser on a motorcycle thief—who promptly caught on fire, apparently due to spilled gasoline. The suspect wasn’t injured, but he could have been. For the most part, things like pepper spray and Tasers are not considered deadly force even in the rare occasions when someone dies.
The second question is what happens when a cop thinks a person is dangerous but is mistaken. This happens all the time. It’s what happened to Tamir Rice, the 12-year-old who Baltimore police shot and killed because he was carrying a realistic-looking toy gun. It’s what the police officers claim happened in the case of Michael Brown, the 18-year-old shot in Ferguson, Missouri. And the rule is pretty clear: as long as police honestly and reasonably believe they or others are at serious risk, they’re justified in using deadly force, even if it turns out they were mistaken. Of course this leads to to a lot of situations where police say, “I thought he was going for a gun,” while others question police credibility. Some researchers also suggest that stereotypes about race and gender can play a part in police officers’ split-second determinations about whether someone is dangerous. That’s a valid issue of concern, but it’s a conversation for another day.