GW Law Professor Crafts Police Use of Force Legislation

Maryland state legislator introduced police use of force bill based on Cynthia Lee’s model legislation for deadly police shootings.

Police
(Photo by: Elvert Barnes)
March 20, 2019

By Tatyana Hopkins

Much attention has been drawn in recent years to police officer involved shootings—from the many protests that erupted after the 2014 fatal shooting of Michael Brown by an officer in Ferguson, Mo., to the more recent protests in Sacramento, Calif., following the district attorney’s decision not to charge officers involved in the fatal shooting of Stephon Clark—but officers are still rarely prosecuted or convicted in such shootings, even when questions are raised about whether they were actually justified, says GW Law professor Cynthia Lee.

“This is in large part because existing law, or lack thereof, gives police officers enormous discretion to use whatever force they think is necessary under the circumstances,” Ms. Lee explains.

Having already done research about how racial stereotypes about African Americans influences jury verdicts in self-defense cases involving African-American victims, Ms. Lee decided to start researching the law on police use of deadly force when she “kept hearing stories of young, black men shot by police officers, even when they were unarmed or doing nothing threatening.”

She published the results of her research and a model police use of force statute in a 2018 article in the University of Illinois Law Review, which suggested that for a police shooting to be considered justifiable, a jury must find that both the officer’s beliefs and actions were reasonable.

“Most existing statutes on use of force focus solely on the reasonableness of the officer’s beliefs,” Ms. Lee explains. “The problem is that focusing solely on beliefs usually turns into a question of whether the officer’s fear was reasonable, and the jury will almost always find that it was reasonable for the officer to fear for his life if the officer testifies that he thought the suspect had a gun.”

This year, Ms. Lee’s model legislation was spotted by a Maryland legislator, Del. Alonzo T. Washington (D-Prince George’s County), who used it to craft a new police use of force bill. That bill was discussed in a recent Maryland House Judiciary Committee hearing

Introduced in February as House Bill 1121 (H.B. 1121), the measure would provide guidance to juries in police use of deadly force trials by specifying three factors they should consider when deciding whether the officer’s actions were reasonable:

  • whether the victim/suspect had or appeared to have a weapon and refused to drop it
  • whether the officer engaged in de-escalation measures such as taking cover and waiting for back up before using deadly force and
  • whether the officer engaged in any conduct before the use of force that increased the risk of a deadly confrontation.

The bill’s lead sponsor, Mr. Washington, testified at the committee hearing that the proposed legislation aims to build on recent work done in the state of Maryland to reform police practices.

He said much of what is proposed in the bill is already included in internal police regulations issued by the Maryland Police Training and Standards Commission, a state police oversight agency, and only suggests jurors consider “measures that many police chiefs acknowledge are critically important” when assessing the reasonableness of an officer’s use of deadly force. 

“The advantage of H.B. 1121 over the commission’s regulations is the legislation would have the force of law,” Mr. Washington said. “Because of its enforceability in a court, a statutory provision could have far more potential to shape police culture than internal police regulations.”

According to Mr. Washington, Maryland is one of only seven states that does not have a statute concerning police use of force. He also pointed out that of the state’s 84 reported homicides committed by law enforcement officers between 2013 and 2017, 87 percent of the victims were African American.

“Making sure the law allows police officers to use deadly force only when such force is necessary and proportionate is critical to reducing this number of officer-involved homicides, maintaining public safety and improving accountability and public trust in our police departments,” he said. 

Mr. Washington asked his colleagues for support on what he called the “non-controversial” bill and offered an amendment to strike language that would have allowed the jury to find an officer who honestly but unreasonably believed in the need to use deadly force not guilty of murder, but instead guilty of voluntary manslaughter, from the draft.

However, the bill was still met with some resistance.

House Judiciary Committee Member Lauren Arikan (R-Baltimore County) said the proposed bill would deter police officers from joining the force and make officers already on the force apprehensive about doing their jobs, especially in Baltimore. 

In 2017, Baltimore entered into a consent decree to resolve U.S. Department of Justice findings that the city’s police department engaged in a pattern of behavior that violated constitutional rights and federal law.

“We already struggle to get officers,” Ms. Arikan said. “This will make it worse.”

Sgt. Michael Young, an officer and president of the Maryland National Capitol Park Police Lodge of the Fraternal Order of Police agreed.

“This does create a check box for us,” he said. “What’s going to run through my head…is did I do these things right, and in the meantime a citizen can be harmed, or I could be harmed.”

Ms. Lee said it makes sense to hold officers to a “higher standard” than civilians for three reasons. First, “police officers are entrusted with the power and authority to use deadly force; ordinary civilians do not have such power.” Second, unlike civilians, police officers are trained in the use of deadly force, so we can expect them to be more accurate when they decide to use deadly force. Third, in other areas of the law, we hold professionals to a higher standard of care than civilians. Professional skiers, for example, are held to a higher standard than recreational skiers. Professional truck drivers are held to a higher standard than ordinary motorists. Professor Lee also pointed out that the bill does not require officers to be correct in their assumption of danger. Under the bill, officers can be mistaken “so long as their beliefs and conduct were reasonable.”

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