(Institute/University)
Abstract
Recent news of police engaging lethal force to contain seemingly non-dangerous situations has dominated headlines in the news. News such as the shootings of Kajieme Powell, Michael Brown and countless others and the seeming impunity that the system grants the accused proffer that the system will use any avenue to impose the upper classes’ will on the lower class in the guise of crime control. However, rather than project a racist slant, the research also looks on the possibility that the police officers, in the line of duty, must be given enough latitude in determining the situations that must be addressed with the engagement of lethal force by law enforcement elements. Whatever the position, the issue in the paper is that police officers are wont to use force, too much force, in quelling confrontation situations. The paper seeks to determine the veracity of these issues and delineate the factors that impact the subject.
Introduction
Force and its engagement in criminal situations has been a critical aspect of policing in the modern day. Differentiating its use as to when it is rational and legitimate, legal and the inordinate use of force developed a number of ethical, legal, and societal dilemmas. Expounding on these differences in the engagement of force in specific situations needs insight into the activity of policing and the discretion has been at the center of empirical and academic policing studies in the Western world for fifty years.
Belur (2010, p. 1) characterizes policing as one that is imbibed with hazard, power, and the right to engage force-features that are ‘non-negotiable.’ As the agency of the State tasked to enforce the law, the police regard themselves as the “thin blue line” that protects the community from the “forces of anarchy.” Citing Reiner (2000), the author proffers that the police act out an “idealistic sense of mission” to rein in an “unruly, dangerous” lower social class; this is the area where the majority of the instances of abuse by the police occur.
Law enforcement elements are given weapons and presumed dangerous in many countries, and though defense by the police from the nefarious acts of others is in theory the assumed norm, there is no protection when the police are the ones that commit the misdeeds and the mechanisms to bring the police to the bar of justice is ill-defined and is difficult to define (p. 1). Central to the question of inordinate use of force by the police is the use of firearms. A number of minority groups and people understand a stringent “defense of life” policy as a critical factor in defining use of force issues.
In this line, these parties unyieldingly maintain the position that police officers can only use deadly force to in self-defense and in protecting the lives of others. Many among the police establishment will posit the position that the instance of using force by police in confrontation situations must be only given limited restrictions, in this light, using the reasons of self-defense and the defense of others as the justification for the imposition of the minimal restrictions (Community Relations, 2002, p. 18).
In assessing cases of police interventions engaging lethal force, such as in the case of Tamir Rice, jury members are generally instructed to center their discussions and debates on one critical factor: when the police officer discharged his/her firearm, did the officer have reasonable suspicion that the victim posed a “grave and imminent” threat to the officer’s safety?
In the argument of Boykin, Desir, and Rubenfeld (2016), the simplistic construction of the issue negates the need to consider whether there were other choices other than the use of lethal force and whether the issue of racism played any part in the choice of action on the part of the officer/s. Under the prevailing legal jurisprudence, these elements are irrelevant to the discussion; until such time that these issues are transformed into critical elements of that decision, America’s police forces will continue to be challenged by two issues in using force; one, the improper use of inordinate force, and two, the issue of racism in the understanding the problem.
The influence of the color of one’s skin
Gabrielson, Jones, and Sagara (2014) avers that in a ProPublica study conducted by Sleight and Birch (2014), Federal data on police use of lethal force shows that African American adolescents were 21 times more likely to be shit by police compared to their “white” counterparts in society. From 2010 to 2012, Federal data tracing the incidents involving African American males were killed by the police at 31.17 individuals for every million; this is contrasted with 1.47 “white males” that were killed per one million (Gabrielson, Jones, and Sagara (2014). To fully appreciate the inordinate gap in the data, one must calculate the risk faced by the ‘whites’ when placed in similar situations. The number comes to 185, or at least one per week.
The data released by ProPublica on the threat of young African Americans being killed by police seems to affirm a long standing belief in the minority community: African American males are being killed in disparate numbers compared to the general population in the United States. In the research of University of Albany professor and Violence Research Group co-director Colin Loftin, the data released in the FBI disclosure is only a minimum number of killings accounted by the police. Loftin avers that this number is not only unfeasible to deduce, it is impossible to arrive at in the first place. In addition, it is extremely difficult to predict the factors that increase the risk factors for people to be killed by the police without the development of better and more accurate data sets.
Discussion of key terms
May and Headley (2008, p. 46) offers a basic definition of what comprises ‘lethal force.’ The authors define deadly force as “force that is likely to cause death if employed.” Nonetheless, though instances of police use of deadly force is significant and often reap the most media reports, these taken objectively point to a small part of the ‘use of force continuum’ and a miniscule part of the actual operation of the police agency. That there is the possibility that sees police use deadly force when needed raises the dilemma as to the time and the situation that will justify the use of that deadly force.
Prior to the great focus on the lethal use of force by the police, majority of the police establishments in the United States followed the ‘fleeing felon doctrine’ in common law. Under this concept, it was held that police officers can if needed use lethal force in arresting fleeing criminals. The canon of law evolved from English common law during medieval England when it was believed that all crimes were deserving of the death penalty. Owing to the fact that there were few escapees, the law allowed the killing of a person fleeing from the scene of the crime (Dempsey, Forst, 2009, p. 156).
The Garner ruling finally ended the doctrine that allows the engagement of lethal force against escaping suspects. In Tennessee v Garner, 471 U.S. 1 (1985), police officers responded to a neighborhood call of people breaking into a house. Responding officers, after warning the suspect, fired a shot that hit the suspect in the head. In the trial, the police averred that these were acting within the ambit of the law in Tennessee that allows police to use “any necessary force to effect an arrest and to use these means, even deadly force, if the suspect is escaping from the police.”
The Court, ruling 6-3, ruled that the doctrine is unconstitutional; it states that engaging deadly force against weaponless suspects constitutes an ‘illegal seizure’ in violation of the Fourth Amendment (Dempsey, Forst, 2009, p. 156). The court held that the use of deadly force against non-threatening suspects under the ‘fleeing felons doctrine” is constitutionally irrational. The Court that there is no improvement in the situation than when a suspect flees or when the suspect is killed; the injury that the suspect can possibly inflict should the escape be made good does not justify the use of deadly force to quash the possible threat.
In the discussion of the basis of the rejection of the doctrine, the Tennessee law is constitutionally infirm as it permits the use of deadly force against an unarmed, non-dangerous and escaping felon. The High Court ruled that the use of deadly force is allowed in cases where the escape of the suspect will pose a grave threat to the community or will inflict serious injury or will result in the death of the officer (Find Law, 2016).
The language of the court is that when the police officer restrains the liberty of the person to move, in effect, the police has arrested or seized the individual, as ruled in United States v Brignoni-Ponce, 422 U.S. 873, 878 (1975). Though it has not been established when token police intervention can be regarded as a seizure, as is the case in United States v Mendenhall, 446 U.S. 544 (1980), there is no argument that effecting an arrest with the use of lethal force is an issue that falls under the ambit of the Fourth Amendment.
The common law policy in this area must be construed as arising from an era where all felons were regarded as qualified to die. Though felons were protected by the ceremonial conduct of a trial and the necessary conviction after the trial, the killing of a fleeing or escaping felon will result in consequences that are no different from that of executing the felon by the agency of the State. Numerous courts have emphasized the significance of this common law policy in comprehending the threat of fleeing felons, as noted in Schumann v McGinn and Holloway v Moser (Find Law, 2016).
In the United States, before 1985, most states have statutes that recognized the “any felony practice;” in essence, the police can use deadly force to apprehend suspects believed to have committed any type of felony. Some jurisdictions allow their police officers to use deadly force when apprehending escaping felons, including criminals suspected of committing crimes such as carjacking and financial fraud. Other jurisdictions have policies that permit police officers to engage lethal force only on persons suspected of committing ‘forcible felonies’ such as burglary (Community Relations Service-United States Department of Justice, 2002, p. 18)
In addition, Belur (2010, p. 3) avers that there is a degree of digression in arriving at a universal definition for what can be regarded as ‘excessive.’ First, considering the definition musters the need for value assessments. A number of criteria can be engaged in determining the apparent disparate nature of the judgment; for example, human rights advocates use ethics in determining what is excessive. Citizens generally use ‘common sense,’ and police officials implement professional barometers. The authors cite the work of Klockars (1996) in positing that a general understanding of what can be regarded as ‘excessive’ in terms of law enforcement, criminality, and civil damages is deficient in establishing instances where inordinate force has been engaged.
Again, there is no universally accepted definition for what constitutes ‘excessive force.’ Compared to the definition of May and Headley (2008), the National Institute of Justice (2015) cites the definition given by the International Association of Chiefs of Police, stating that excessive force is the “amount of force required by police [personnel] to compel compliance by an unwilling subject.”
How the topic fits in the field of criminology
New technologies in the area of engaging “less-lethal” weaponry give the promise of improved restrictive powers over hostile suspects yet lowering the possible injuries to the same. Among the newer technologies that are being used in the field includes “pepper sprays” that were deployed among police units; recent times have seen the use of “conducted energy devices (CED) such as “Taser” devices by a growing number of police units. There are a significant number of police units presently using these CED mechanisms in the field.
However, the use of these ‘non-lethal’ technologies is still fraught with quarrels. Groups such as Amnesty International and the American Civil Liberties Union have challenged the use of these devices, citing safety concerns and possible injuries that can be inflicted by the mechanism on the suspect. In addition, policy makers as well as police officials seek to determine that efficacy and safety of these mechanisms in the field, and the appropriate protocols wherein the use of these machines will be justified (Bulman, 2011).
The National Institute of Justice (2010, p. 5) states that the use of “pepper spray” compared to physically restraining the suspect lowered the threat of injury to police officers by more than 70 percent; a police officer targeting his/her weapon at a suspect reduced the threat of injury by at least 80 percent; the mere act of the officer pointing a weapon at the suspect effectively quelled the resistance of the suspect. In contrast, the use of canine units against suspects posed the greatest injury threat to the suspects; the use of canine units in pursuing the suspect poses the greatest risk factor for the suspect to incur injuries.
Application in real world events
For example, the work of the National Institute of Justice (2010, p. 5), the Miami Dade Police Department (MDPD) began engaging Taser devices in 2003; three years later, 70 percent of MDPD units carried Tasers in the field. Research evinced more than 700 instances of use of force between 2002 and 2006; during that time, the majority of the injuries noted during this period were mainly minor in nature. The use of “soft hand” and “hard hand” strategies multiplied the risks for officers to be injured; hard tactics such as pummeling and kicking the suspect increased the risk for injuries for the suspect. The use of the Taser significantly reduced the risk of injury for both the police officers and the suspects.
Gillis (2015) reports that a number of police departments inculcate in their police officers the policy that the use of lethal force must be engaged only as a “matter of last resort” or in situations that would tend to develop more danger than if not engaged; in essence, the factors leading the decision of ‘pulling the trigger,’ or not to pull the trigger, must be developed with the consideration of a number of factors. Among the options that can be considered in arriving whether to use or not to use one’s weapon is the nature of the case, the environment where the case is located, the appropriate choice of force option, and the use of the ‘force option’ given the context of all these factors.
The trial in the shooting of Sammy Yatim by Ontario police elements engaged the ‘use of force’ model given in training Ontario police recruits. The model segregates the appropriate response the police officer must use in certain situations. The range of responses is graded from suspects that are cooperative and non-resistant to police orders to suspects who will pose a serious threat to the community. In the operation of this model, the underlying concept is the perception of the police officer of the level of threat the individual poses to himself/herself and to the community at large.
Conclusion
The engagement of lethal force by police and other law enforcement elements develops significant human rights issues. In the report of Amnesty International (2015, pp. 1-2), the use of lethal force by police against seemingly non-dangerous criminals raises legal dilemmas against discrimination and engages provisions in issues such as the ‘right to life,’ ‘equal protection of the law,’ and ‘right to be secure in one’s person,’ among others. The international human rights watchdog challenges the United States to honor its commitments to defend and comply with the human rights obligations.
One of the main tasks of the state in carrying out its responsibilities, particularly in fulfilling its duties to quell threats to the community, is the protection of the life of the person. In engaging the need to use deadly force to comply with that duty, the group believes that this is an unjustifiable position. Under the United Nations Basic Principles on the Use of Force and Firearms, police officers cannot use lethal force on suspects, and when the use is deemed legal and justified, it is only in situations of defending oneself and defending others from an “imminent threat of death or serious physical injury (p. 1).
In protecting the right to life of an individual, even those accused of committing a crime, according to the United Nations, is the creation of an appropriate legal structure for adjudicating instances of the use of force by the police. Under this system, the instances where the use of force by the police will be justified in prosecuting the aims and objectives of the State in terms of policing will be set out and in this context, establishing the parameters of the instances of the use of force to adjudge violations of the policy (p. 2).
In Seattle, a legislative proposal has been introduced in the state law making body on the use of lethal force by the police. The introduction of the bill is expected to trigger clashes between law enforcement stakeholders who are critical of the proposal. Under the proposed measure, the text in the state’s laws that prohibits the prosecution of police officers when, in the line duty, the suspect is killed and the police officer/s acted in “good faith,” or “evil intent,” will be expunged. Miletich (2016) describes the language as among the most selective in the United States and the most obstructing in filing murder or manslaughter cases even though the prosecution comes to the conclusion that the police were guilty of “wrongful death.”
The proposal comes at a crossroads in the comprehension of the issue, and the bill will face a difficult challenge in the Democrat-controlled state House of Representatives and win support from the rural area moderate wing, and then muster enough votes in the Republican-dominated Senate. In addition to expunge the language on ‘malice’ and ‘good faith,’ the proposal also removes from the law the scenarios that proffer the instances where the police can be justified in using deadly force. In its place, the bill seeks to introduce the concept of ‘reasonableness,’ wherein the police officer/s must rationally believe that there is an “imminent threat” to the life of the person or that the person will be inflicted severe harm and that the sole avenue to avoid this possibility is the use of deadly force.
The excessive use of force, in particular the use of firearms, has been among the key issues in the area of policing. In the most recent cases engaging the use of force by the police, Michael Brown was shot six times; Kajieme Powell was shot nine times. The number of shots fired by the police in a high density urban area can be regarded as reckless and places civilians at extreme risk indicating that the deliberate use of deadly force is in violation of international laws that state that only in times of self-defense and in defense of others can lethal force be employed by the police. Though there are ‘less-lethal” options, these options are still lethal; there are cases where the suspects died after being ‘shocked.’ Hence, in the use of both avenues, what must be observed is the use of the least amount of force, whether lethal or not, to attain the desired results (p. 3).
References
Amnesty International (2015) “Deadly force: police use of lethal force in the United States” Retrieved 1 March 2016 from <http://www.amnestyusa.org/pdfs/AIUSA_DeadlyForceExecutiveSummaryJune2015.pdf
Belur, J (2010) Permission to shoot? Police use of deadly force in democracies. Berlin: Springer Science and Business Media
Boykin, O., Desir, C., Rubenfeld, J (2016, January 1) A better standard for the use of deadly force. The New York Times Opinion
Bulman, P (2011) “Police use of force: the impact of less-lethal weapons and tactics.” Retrieved 1 March 2016 from <http://www.nij.gov/journals/267/pages/use-of-force.aspx
Community Relations Service-United States Department of Justice (2002) “Police use of excessive force.” Retrieved 1 March 2016 from <https://www.justice.gov/archive/crs/pubs/pdexcess.pdf
Dempsey, J., Forst, L, (2009) An introduction to policing. Boston: Cengage Learning
Find Law (2016) “Tennessee v Garner” Retrieved 1 March 2016 from <http://caselaw.findlaw.com/us-supreme-court/471/1.html
Gabrielson, R., Jones, R., and Sagara, E (2014) “Deadly force, in black and white” Retrieved 1 March 2016 from <https://www.propublica.org/article/deadly-force-in-black-and-white
Gillis, W (30 October 2015) Lethal force only for imminent threats, deputy police chief tells officer’s trials. Toronto Star Crime
May, D.A., Headley, J.E (2008) Reasonable use of force by police; seizures, firearms, and high speed chases. Bern: Peter Lang
Militech, S (2016) Bill would make it easier to charge cops over deadly force; police group calls it ‘bad publicity.’ The Seattle Times Crime
National Institute of Justice (2015) “Police use of force” Retrieved 1 March 2016 from <http://www.nij.gov/topics/law-enforcement/officer-safety/use-of-force/pages/welcome.aspx
