RECENT police shootings of apparently blameless black
men in Baton Rouge, Louisiana and Falcon Heights, Minnesota have shed fresh
light on a decades-old concern: the alarming rate at which police officers use
lethal force on civilians.
Tallies by the Washington
Post show that police shot and killed 990 people in America
in 2015 and 552 people so far this year. “The discretion whether to
employ deadly force is...the gravest power that a society can delegate to one
of its agencies,” Wade McCree, the solicitor-general under Jimmy Carter, noted
in the 1970s. Just how much discretion do police have?
Quite a bit is the
answer, though less than they once had. In 1985, the Supreme Court considered
the case of Edward Garner, a 15-year-old boy who was shot and killed by police
after he ignored calls to “halt” and fled on foot from the scene of a burglary. The officers pursuing Mr Garner (who was later found with a stolen purse and
$10) did not believe him to be armed, and indeed he carried no weapon.
But
Tennessee law, codifying a long-standing common-law rule, held that “[i]f,
after notice of the intention to arrest the defendant, he either flee[s] or
forcibly resist[s], the officer may use all the necessary means to effect
the arrest.”
By a vote of 6-3, the justices found that legal standard too
permissive. “The fact that an unarmed suspect has broken into a dwelling at
night does not automatically mean he is physically dangerous,” Justice Byron
White wrote. Deadly force “may not be used unless it is necessary to prevent
the escape and the officer has probable cause to believe that the suspect poses
a significant threat of death or serious physical injury to the officer or
others.”
Four years later, the
Supreme Court tried to tighten this amorphous standard in Graham
v Connor, a case involving a police officer who roughed up a man
while he was suffering a diabetic attack. An officer’s good intentions, the
justices held, do not, by themselves, justify the use of force.
The question,
rather, is “whether the officers’ actions are ‘objectively reasonable’ in
light of the facts and circumstances confronting them.” Police officers may
reasonably open fire, Graham held, if “the suspect poses an immediate threat to the
safety of the officers or others”. How should that threat be assessed?
“[P]olice officers are often forced to make split-second judgments” in
situations that are “tense, uncertain and rapidly evolving”, the court said, so
it must be left to police to determine how a right-thinking officer would judge
“the amount of force that is necessary in a particular situation”.
The upshot of this legal
framework is that police need simply to be reasonable.
The standard’s ambiguity
explains why it is notoriously difficult to prosecute officers involved in
seemingly rash lethal encounters, including the 2014 killings of Michael Brown
in Ferguson, Missouri and Eric Garner in New York City.
But in recent years,
several police departments, including New York’s, have introduced new rules of
engagement to cut down the number of “lawful but awful” police shootings.
And
some have explored training their officers to de-escalate encounters with
suspects, so that fewer arrests end in a suspect’s death.
Last December,
representatives from nearly two dozen police units traveled to Scotland to
learn how its officers—98% of whom do not carry firearms—manage to keep the
peace without lethal weapons at the ready.
A police chief from Florida who
attended the briefing commented that American police are “missing the boat” in
terms of “the respect for human life, altogether”.
Many tragedies from recent
years seem to bear that out. But as the deadly shootings of police in Dallas,
Texas and Baton Rouge, Louisiana highlight, American law enforcement confronts
a reality that police in other countries do not: a populace armed with over
300m guns.
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