U.S. laws protect police, while endangering civilians
By Paul Hirschfield
Paul Hirschfield does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.
The Conversation is funded by Gordon and Betty Moore Foundation, Howard Hughes Medical Institute, the Knight Foundation, Robert Wood Johnson Foundation, Alfred P Sloan Foundation, Rita Allen Foundation and the Simons Foundation. Our global publishing platform is funded by Commonwealth Bank of Australia.
In the sixth GOP debate, Donald Trump told Americans: “The police are the most mistreated people in this country.”
On the same day, the Chicago Police Department released a videoshowing an officer killing Cedric Chatman in 2013. The teen was sprinting away at the time of the shooting, unarmed except for a stolen cellphone box. The officer has faced no consequences for his death.
The ritual of an unnecessary police killing with no real accountability has become painfully familiar. The unnecessary deaths of Tamir Rice and Eric Garner in 2014 are among those that galvanized a national movement for greater restraint, accountability and equity in policing.
And yet, 2015 may have been American cops' deadliest year on record. According to my analysis of the Fatal Encounters database, police violence directly caused or played a role in 1,126 deaths in 2015, up from 1,072 deaths in 2014.
Outrage over high profile incidents and a shift in public opinion has led police departments around the nation to equip more officers with cameras and add deescalation training.
But no local, state or federal lawmakers have banned police from using unnecessary deadly force. Rather, lawmakers at all levels still allow police the maximum latitude to use deadly force that constitutional law permits. Indeed, a comparison with police in the U.K. shows that this leniency goes too far to protect police at the price of civilian deaths.
Who is protecting whom?
As written, interpreted and enforced, laws and rules protect the police from the public. They are woefully inadequate, however, at protecting the public from the police.
Despite some high-profile violence against police, American police officers have never been safer. Concerns over a “Ferguson effect” – another topic at the latest GOP debate – are premature, at best.
The Supreme Court invalidated deadly force to make arrests or prevent escapes back in 1985. They later ruled that laws permitting deadly force to prevent grave and imminent harm from the perspective of a “reasonable officer on the scene” are constitutional. The Supreme Court imagined the reasonableness standard as “objective” in light of the full set of “facts and circumstances confronting” the officer at the time deadly force is used.
In practice, the reasonableness of deadly force is fluid and contested.
What is a “reasonable fear” in a post-Bernardino, post-9/11 America? If fearing remote, worst-case scenarios is common sense, then are any perceived threats regarding “criminal suspects” unreasonable?
Flexible definitions have permitted prosecutors to claim police had “objectively reasonable” fears of cars that were driving away, unarmed people running away and even people with their hands up.
Research by The Guardian shows that young black men are five times more likely than young white men to be killed by police. But these permissive laws are a problem that transcends race.
Since July alone, at least 54 unarmed white men have been killed by police who faced no reasonable fear of criminal charges.
State legislatures could have passed their own laws to make clear when deadly force is unreasonable, but none have bothered.
Permissive laws endure because whenever tighter restrictions on the use of deadly force are proposed, police leaders and their advocates swiftly attack them and their proponents for endangering officers.
Their winning argument is that officers must make hurried risk assessments while facing extreme stress in tough-to-read situations. Exercising more care and restraint – for example, pausing long enough to determine whether a suspicious object or movement toward the officer’s weapon is a credible threat – means gambling with their lives, the argument goes. They apparently believe that hundreds of unnecessary killings would be a regrettable, but acceptable, price to pay in order to keep police safe.
And that is where the political debate usually stops, if it even starts.
Lawmakers are rarely asked to justify their support of these policies that cost far more lives than they save. However, there is a point at which this ratio feels unacceptably high to the majority of voters in a civilized society.
The most deadly practices
Perhaps the best way to save civilian lives is to limit the police use of so-called tactical responses that are the most likely to result in unnecessary deaths.
Comparing police killings and officer fatalities in the United States to the United Kingdom reveals some of these tactics and circumstances.
Fatal police shootings are exceedingly rare in the U.K. Americans were 403 times more likely than Brits to be fatally shot by police in 2013-14.
If British police survive the same types of situations without taking any lives, that suggests most killings in the United States under those circumstances are unnecessary.
Weapons that rarely kill police officers
Consider, for example, the estimated 663 people in the U.S. fatally shot while allegedly wielding blades or blunt objects since 2013. Such weapons have killed only nine U.S. police officers since 2008.
Police were not in any grave danger when they killed people like Lavall Hall, Mario Woods and Darrien Hunt – men who never raised their weapons.
British police recorded 26,370 violent knife crimes during the 2014-15 fiscal year, including those that threatened police. But British police have killed only one person armed with a knife since 2008. During that time, no British officers were killed by weapons other than guns.
American police fatally shot 53 unarmed people in vehicles in 2015. By contrast, since 2008, no British police have killed anyone to stop a threatening vehicle. During that same period of time, no British cops died because they failed to stop a vehicle.
In addition to unarmed motorists, American police killed about 200 completely unarmed people last year. This easily exceeds the total of those legally executed over the last five years.
This suggests that prohibiting the use of deadly force against people unarmed and fleeing, armed only with vehicles or armed with less dangerous weapons and not attacking anyone would make policing only slightly riskier while saving hundreds of lives over the next several years.
The same logic applies to other potentially lethal “tactical responses” that can safely be outlawed – such as head strikes, chokeholds, and tasing people who are nonviolent, subdued or fleeing.
Fewer killings, better policing
Reform opponents are armed and ready. They will warn that modest reforms will chase good people from police work and increase crime, but the experience of countries with more restrictive deadly force laws suggests that’s not true.
Staunchly “prolife” police forces like Norway’s and Finland’s tend to enjoy more public trust and attract more upstanding recruits. Crime and arrests may decline under stricter deadly force rules, because better respected police should garner more legitimacy and cooperation.
Restricting deadly force will require investing more in police training and nonlethal weapons technology. A great source of funding is the billions of dollars that will otherwise be spent settling lawsuits stemming from unnecessary deadly force.
State and federal laws and police guidelines all give special consideration to police, because they put their lives on the line to keep us safe. But these laws are asking far more civilians to put their lives on the line in order to keep police safe. Such laws do not afford everyone “equal protection” and, therefore, require thoughtful and urgent revision.