IN police shooting cases like that of 12-year-old Tamir Rice in Cleveland, grand jurors are typically asked to focus on one question: At the moment the officer fired, did he have reason to believe the person he shot posed a grave and imminent threat?
This question fails to consider whether alternatives to deadly force were available and how race might have affected the officer’s perception of the threat. Under the prevailing legal standard, those questions aren’t relevant. Until we make them relevant, American policing will continue to have a tragic excessive force problem and, specifically, a race problem.
American police officers killed 74 unarmed black people in 2015. From January through July, according to The Washington Post, unarmed black men were seven times more likely than unarmed white men to die by police gunfire.
An analysis of F.B.I. data from 2010 to 2012 concluded that the police killed black men ages 15 to 19 at a rate 21 times greater than the statistic for white men the same age. Department of Justice numbers indicate that a black person is about four times as likely to die in custody or while being arrested than a white person is.
What can be done about these appalling facts? Increased use of body and dashboard cameras should help, but will fail to address a fundamental problem.
Police officers in the United States are taught that they can use deadly force if they reasonably believe an individual poses a grave, imminent danger to themselves or others. Superficially, this “reasonableness” rule looks unobjectionable….
One critical and common-sense change would be to adopt a necessity rule. The difference is simple but crucial. Even when the police have a reasonable belief that a person is dangerous, the necessity standard does not permit deadly force if non-deadly or less deadly alternatives are available and adequate to meet the threat.
Before objecting that this rule would be impractical or subject officers to 20/20 hindsight, consider that it’s already the Department of Justice’s standard. As a D.O.J. policy statement puts it, “The necessity to use deadly force arises when all other available means of preventing imminent and grave danger to officers or other persons have failed or would be likely to fail.”
Unfortunately, the D.O.J. necessity standard, adopted in 1995, is not the law; it’s a discretionary policy, and it applies only to federal agencies like the F.B.I. and the Drug Enforcement Administration. Worse, many state police departments and even some courts have explicitly rejected the necessity rule in favor of a mere reasonableness test. To quote the Seventh Circuit, the federal appeals court that covers Chicago, “we do not believe that the Constitution requires the use of the least or even a less deadly alternative so long as the use of deadly force is reasonable.”
The difference is not semantic; it can be a matter of life or death. A serious necessity rule would require all officers to carry nonlethal weapons and deploy them when feasible. If this rule had been in effect in Chicago, Bettie Jones — the 55-year-old woman apparently killed by a stray bullet on Dec. 26 by officers responding to a domestic disturbance call — would almost certainly still be alive.