The D.C. Council unanimously passed a package of emergency police reform legislation that includes Cynthia Lee’s model legislation on police use of force.
By Tatyana Hopkins
The D.C. Council, in response to protests against police violence in the wake of the death of George Floyd, passed emergency legislation on Tuesday that limits the use of force by police by banning neck restraints such as chokeholds and places restrictions on the purchase of military weaponry by D.C. law enforcement agencies. It also orders the release of body cam footage more quickly.
Additionally, the new legislation specifies the requirements for use of force when an officer is charged with a crime and asserts a justifiable force defense, incorporating a model statute on police use of deadly force developed by George Washington University law professor Cynthia Lee.
The use of force provision included in D.C.’s emergency legislation, unanimously approved by the D.C. Council, specifies that in a criminal case against a police officer, for police use of deadly force to be considered justifiable, a jury must find that the officer’s actions—in addition to his beliefs— were reasonable.
“If the focus is solely on the officer’s beliefs, the question the jury usually ends up focusing on is whether the officer’s fear was reasonable,” Ms. Lee said. “Given deeply rooted stereotypes about black people as violent, dangerous criminals, it is too easy for most juries to conclude that an officer’s fear was reasonable when the victim is black.”
Most state statutes outlining the requirements for the law enforcement defense of justifiable use of force allow police to use deadly force if the officer reasonably believed such force was necessary. Some statutes are even more lenient, allowing police officers to use deadly force against civilians based solely on the officer’s subjective belief that such force was necessary.
Ms. Lee’s model legislation on police use of force, which she proposed in a 2018 University of Illinois Law Review article, requires juries to consider not only the reasonableness of the officer’s belief but also their conduct as well.
It also provides more guidance to juries in police use of force trials than most use of force statutes. Juries in D.C. will be required to consider three specific factors when deciding whether an officer’s actions were reasonable: whether the victim had or appeared to have a weapon and refused to drop it; whether the officer engaged in de-escalation tactics prior to using deadly force; and whether the officer engaged in any conduct before the use of force that increased the risk of a deadly confrontation.
Approximately 1,000 people each year are shot and killed by the police in the United States. However, criminal charges are rarely bought against officers in these cases.
Ms. Lee noted that reforming the law on police use of deadly force will not solve all of the problems leading to senseless police killings, but may help shift police culture by encouraging police officers to engage in de-escalation measures.
“Police officers need to remember that they are charged with protecting and serving, not dominating the community and its residents,” she said. “Reforming the law on police use of deadly force is one small step legislatures can and should take towards achieving more police accountability.”
The use of force provision similar to Ms. Lee’s model was part of the Comprehensive Policing and Justice Reform Amendment Act of 2020. It and was introduced by D.C. Councilmember Kenyan R. McDuffie (D-Ward 5).
“As all caring people are, I am heartbroken and angered by the continued killing of black people at the hands of law enforcement — and it must stop,” Mr. McDuffie said after introducing this provision.
“[This] use of force provision will help delineate what is now an unclear standard and increase the public’s trust in the police by increasing police accountability.”
The emergency bill will run for 90 days but may be extended by the Council. To make the changes permanent, the Council must hold public hearings.
Ms. Lee’s model legislation has also been the basis for police use of force bills introduced in the Maryland General Assembly. HB 1121 failed to make it out of the Maryland House Judiciary Committee after being initially introduced last year by Del. Alonzo T. Washington (D-Prince George’s County) and reintroduced as HB 166 earlier this year. Language from her model legislation was also incorporated in Anton’s Law, HB 1090, which also failed to make it out of committee earlier this year.
Maryland currently does not have a statute on police use of force.
“All who are marching in the streets agree that something needs to be done to deal with excessive use of force by the police, but there is significant disagreement over what should be done,” Ms. Lee said. “What everyone should agree on is that we need more accountability.”