Capstone Project on "Contemporary Criminal Justice Issue Police Use of Deadly Force"

Capstone Project 20 pages (6054 words) Sources: 8

[EXCERPT] . . . .

Police Use of Deadly Force

Since time immemorial, the use of deadly force has been considered justified for self-defense, or for the defense of one's family and even property. When deadly force is used by governmental authorities to protect law enforcement authorities, citizens and property, though, the justification becomes less clear-cut and the appropriateness of such use can be highly subjective. Because most uses of deadly force take place during violent encounters where split-second decisions can mean the difference between life and death for police officers, there must be solid guidelines in place to help police make the right decision at the right time. To determine what type of typical guidelines are in place in various jurisdictions throughout the United States and the controlling federal laws that apply, this paper provides a review of the relevant literature concerning use of deadly force by police, including a definition of the term, a discussion concerning when such use is regarded as justified, as well as a discussion concerning precedential case law. A discussion of these issues is followed by a summary of the research and important findings concerning the use of deadly force by police in the conclusion.

Review of the Literature

According to Black's Law Dictionary (1990), deadly force is "the degree of force that may result in the death of the person against whom the force is applied. Force likely or intended to cause death or great bodily harm; may be reasonable or unreasonable depending on the circumstances" (p. 398). The latter qualification has been the source of much controversy concerning when circumstances do indeed warrant the use of deadly force. As one police officer puts it, "Americans have been both drawn to and repulsed by deadly force since municipal police officers started carrying firearms in the 1850s. Psychologists would tell us that this is so because at some deep subconscious level humans are both drawn to and repulsed by violence of any sort" (Klinger, 2004, p. 8). The extent of the issue is not insignificant either, with approximately 600 criminals being killed by police officers every year (Russell & Beigel, 1999). This estimate is confirmed by Winright (1999) who reports, "Researchers estimate that police officers kill about 600 criminal suspects yearly, shoot and wound an additional 1,200, and fire at and miss another 1,800. This being the case, the issue of the use of force, especially deadly force, by law enforcement officials in the performance of their duties deserves vigilant scrutiny" (p. 37). Further scrutiny of these statistics shows that the vast majority of deadly force applications are justified. For instance, according to Russell and Beigel, "Some of these killings are done in self-defense, some are accidental, and some are to prevent a serious crime. A few represent serious abuses of police power" (p. 366).

Although hundreds of criminals are killed by police officers each year, hundreds of police officers are also killed and wounded each year by criminals in the United States as well (Russell & Beigel, 1999). Indeed, these authors posit that many of these police officers are killed because they hesitate to use deadly force because of the enormous implications that are involved. According to Russell and Beigel, "Many lose their lives in that split second required by the processes of perception, evaluation, decision, and action that every officer exercises prior to using deadly force" (p. 367). Given the implications of the use of deadly force by police officers, it is little wonder that some tend to hesitate before they resort to its use: "Not only do officers have to face the stress from the shooting itself, but they also have to worry whether it will be judged a 'good shooting' by investigators and administrators who will review and judge their every action (or lack of action) in the cold, unemotional reality of the next day" (Russell & Beigel, p. 367). According to Hall (1999), there is an overarching need for clear-cut guidance to help police officers know when and where they should or should not use deadly force: "The critical nature of law enforcement decisions regarding the use of deadly force demands the clearest possible guidance with respect to the legal standards controlling the officers' actions" (Hall, 1999, p. 28). The implications of the absence of such guidance are profound, with officers either hesitating too long to apply deadly force to their detriment or becoming overly aggressive in its application (Hall, 1999).

In most jurisdictions, the use of deadly force by police is subject to at least five legal sanctions:

1. Civil action in a local or state court;

2. Criminal action in a local or state court;

3. Federal civil rights action under Section 1983 of Title 42 of the U.S. Code;

4. Federal criminal action under Section 242 of Title 18; and,

5. Departmental disciplinary action (Russell & Beigel, 1999, p. 367).

In addition, three provisions in the U.S. Constitution apply to the use of force by government officials: (a) the Fourth Amendment, (b) the Eighth Amendment, and the (c) Due Process Clause (Hall, 1999), the relevant sections of which are set forth in Table 2 below.

Table 2

Constitutional provisions related to the use of deadly force

Section

Provisions

Fourth Amendment

Amendment of the U.S. Constitution guaranteeing people the right to be secure in their homes and property against unreasonable searches and seizures and providing that no warrants shall issue except upon probably cause and then only as to specific places to be searched and persons and things to be seized (Black's law dictionary, 1990, p. 657).

Eighth Amendment

Amendment to the U.S. Constitution added in 1791 which prohibits excessive bail, excessive fines and cruel and unusual punishment (Black's law dictionary, 1990, p. 516).

Due Process Clause

Two such clauses are found in the U.S. Constitution, one in the Fifth Amendment pertaining to the federal government, the other in the Fourteenth Amendment which protects persons from state actions. There are two aspects: procedural in which a person is guaranteed fair procedures and substantive which protects a person's property from unfair governmental interference or taking. Similar clauses are found in most state constitutions (Black's law dictionary, 1990, p. 500).

The application of these constitutional provisions to deadly force cases also varies according to circumstances and includes an extension of these rights to include the taking of life by the government. For instance, according to Hall, "By its explicit terms, the Fourth Amendment prohibits unreasonable searches and seizures. Accordingly, the U.S. Supreme Court has held that within the context of arrests or other seizures of persons, the use of deadly force by police officers must be 'objectively reasonable, in light of the facts and circumstances confronting [the officers]...judged from the perspective of a reasonable officer on the scene...rather than with the 20/20 vision of hindsight'" (cited in Hall at p. 27). Likewise, the Eighth Amendment specifically prohibits "cruel and unusual punishments" and based on the specificity of this clause, the Supreme Court has maintained that the Eighth Amendment controls the use of force that is needed to maintain control of convicted prisoners and has framed the issue as "whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm" (quoted in Hall at p. 27). Although the Fourth and Eighth Amendments have provided the framework in which courts have determined the range of their applications, the same framework has not been used with the Due Process Clause (Hall, 1999). According to this authority, "As stated in the Fifth and Fourteenth Amendments, the Due Process Clause prohibits the federal and state governments, respectively, from depriving any person of 'life, liberty, or property, without due process of law'" (cited in Hall at p. 27). Historically, the Supreme Court has held that the due process concept includes procedural as well as substantive rights with procedural due process "protect[ing] against arbitrary takings" by government and the substantive due process protections being against "government power arbitrarily and oppressively exercised" (cited in Hall at p. 27).

Taken together, the foregoing sanctions and constitutional provisions make it reasonable to suggest that most police officers will seek to resolve a criminal encounter without the use of deadly force if at all possible, but the regularity of its use also indicates that the lawlessness involved in some situations absolutely demands the use of deadly force. The association between deadly force encounters to the degree of lawlessness involved is shown by the following analyses of the situations in which they have historically occurred in Table 2 and Figure 1 below:

Table 2

Historic relationship between deadly force use and the type of encounter

Type of Encounter

Percentage of Deadly Force Use

Disturbance calls

32%

Robbery in progress

21%

Burglary in progress

20%

Traffic offense

8%

Personal dispute and accident

4%

Stake-out and drugs.

4%

Source: Russell & Beigel, p. 367

Figure 1. Historic relationship between deadly force use and the type of encounter

Source: Based on tabular data from Russell… READ MORE

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