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A duty to de-escalate

By Adrienna Wong Ben Armistead | Apr. 12, 2018

U.S. Supreme Court,
Constitutional Law

Apr. 12, 2018

A duty to de-escalate

It’s time for a new standard: Police should be legally required to de-escalate or use alternatives to deadly force whenever possible, and only be legally authorized to use deadly force when those alternatives are insufficient.

0412 ldj wong
A boy holds up a sign during a protest march in Sacramento on April 4. Protesters continue to denounce the police killing last month of Stephon Clark, an unarmed black man who was fatally shot in his grandmother's backyard. (New York Times News Service)

Two weeks after Sacramento Police Department officers shot and killed Stephon Clark, an unarmed black man, in his family's backyard, sparking widespread protests, the U.S. Supreme Court issued its opinion in Kisela v. Hughes -- conferring immunity on an officer who shot a woman in mental distress in her own front yard, without warning, a minute after arriving on scene. The timing of Kisela highlights a growing disconnect between public concern over police shootings and evolving use-of-force standards, on the one hand, and on the other hand constitutional law that grants increasingly wide deference to police to take human life as they see fit.

The law must meaningfully limit police use of deadly force. If the Supreme Court won't do it under the Constitution, we must look to state law to fill the void.

Current constitutional law gives police license to kill whenever a "reasonable officer" would use deadly force, even where it was possible for the officer to use alternative means to secure the situation without taking anyone's life. The law thus authorizes police killings that are not necessary, a standard that is out of step with both public values and 21st century policing standards, and one which has unsurprisingly widened the rift between grieving communities -- especially the communities of color disproportionately impacted by police violence -- and the law enforcement agencies that are supposed to protect them.

Law enforcement professionals have developed training that empowers and instructs officers to use alternatives to lethal force, including de-escalation tactics and clear communication, to protect public safety without killing anyone. Law enforcement themselves assert that they are already trained to use deadly force only when necessary, and to defuse dangerous situations whenever possible. Research shows that officers in departments with such policies kill fewer people and are less likely to be killed or assaulted themselves. Courts applying the "reasonable officer" standard, however, have not required individual officers to adhere to the duty of care that this body of professional practice establishes.

It's time for a new standard: Police should be legally required to de-escalate or use alternatives to deadly force whenever possible, and only be legally authorized to use deadly force when those alternatives are insufficient.

The law regulating police deadly force can evolve; it has before. In 1985, the Supreme Court in Tennessee v. Garner did away with the common law "fleeing felon" rule that authorized police to use deadly force to prevent the escape of any person suspected of a felony. The court then confronted the same situation it faces now: the obvious injustice of police shooting to kill people posing no danger to anyone else; a hodgepodge of different state laws and agency policies trending towards more restrictions on deadly force; the absence of any evidence that crime or violence towards officers worsened in jurisdictions that adopted more restrictive rules on force; the argument, nonetheless, that a new rule "would require the police to make impossible, split-second evaluations of unknowable facts." As legal scholars have noted, the Garner court focused on contemporary tactics actually used by police to minimize the need for force while meeting law enforcement goals to articulate new rules about the reasonable use of force. See Brandon Garrett & Seth Stoughton, "A Tactical Fourth Amendment," Virginia Law Review (Apr. 2017).

But today's Supreme Court seems unlikely to take on any substantive review of the Fourth Amendment standard for deadly force. Today's court routinely adopts at face value the proposition that police conduct is always the result of split-second decisionmaking that would be impossibly burdened by the imposition of a meaningful limits. Accordingly, the court in recent years has refused to articulate any clear limitations on the use of deadly force by police. It has dodged multiple opportunities to clarify that the "totality of circumstances" bearing on the use of deadly force must necessarily include the reasonableness of officers' actions leading up to the force. And in a series of decisions relying on factual minutiae to grant officers qualified immunity, the court has abdicated the judiciary's role in enforcing any coherent legal standard for deadly force. As Justice Sonia Sotomayor stated in her forceful dissent in Kisela this month, the court now applies a "one-sided approach to qualified immunity that transforms the doctrine into an absolute shield for law enforcement officers, gutting the deterrent effect of the Fourth Amendment." Although our legal tradition has always tied "reasonableness" to evolving community standards, neither widespread public protest over police violence and persistent calls for more accountability nor changing professional standards have shifted the Supreme Court from its current course.

State action presents opportunities where the Supreme Court has shut the door. States can adopt standards for police force that are more restrictive than what federal constitutional case law requires. For example, at least three states -- Tennessee, Delaware and Iowa -- currently authorize police to use deadly force only as a last resort.

California's statute governing police use of force is not as strong. The statute dates back to 1872 is and is woefully obsolete. Instead of calling for tactical de-escalation or even warnings when feasible, it instructs officers that they have no duty to desist or retreat from the use of force to arrest. In fact, the statute does not even reflect the limitations established by the Supreme Court in Garner; legislative inaction has forced courts and law enforcement to interpret the state statute in light of the higher constitutional standard to the best of their abilities.

But California lawmakers have introduced landmark legislation to change the law. A new bill, Assembly Bill 931, would update and significantly strengthen California's regulation of police deadly force. It would authorize deadly force only as a last resort, exchanging the amorphous "reasonable officer" standard for one that authorizes only necessary force. The bill would also clarify that deadly force is only necessary if used to protect the officer or another from an immediate threat of serious injury or death. Finally, the bill would make clear that police officers -- like members of the general public -- are accountable for taking reckless actions that have deadly consequences.

Last year, police shot and killed 162 people in California, half of whom were not armed with guns. To protect public safety and prevent more unnecessary loss of life, we must change state laws on when police can kill. By passing AB 931, California can lead the way.


Ben Armistead

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