The Difficult Realities Of Lethal Force

Below is my column in the Hill on the spate of recent police shootings and the resulting calls for reforms and criminal charges.  Two new incidents have occurred in the last week and both raise serious questions that must be answered on the use of lethal force.  In North Carolina, Andrew Brown Jr., 42, was shot and killed during execution of an arrest warrant. He was reportedly shot in the back while trying to flee but no gun was found. In Virginia, Isaiah Brown, 32, was shot more than six times by a deputy who appears to have thought that a cellphone was a gun.  The officers had previously given Brown a ride home and they were later called back to the home due to a disagreement. The tape shows Brown saying that he was going to kill his brother with a gun, but Brown told the 911 operator that he did not have a gun. These and the prior cases capture the dangerously uncertain and chaotic context of such cases.  Both Brown cases raise serious questions that need to be answered on the use of lethal force.

Here is the column:

The shooting of 16-year-old Ma’Khia Bryant in Columbus, Ohio, has produced a torrent of objections to how police respond to armed suspects. Some, like MSNBC host Joy Reid, simply declare that the use of lethal force to stop a knife attack is “murder.” “The View” co-host Joy Behar thinks officers who come upon someone about to knife another person should shoot into the air, as a warning. President Biden has long maintained that police officers should shoot armed suspects in the leg.

However, there is a reason why police manuals do not say “aim for the leg” or “try to shoot the weapon out of the suspect’s hand.” It is called “imminent harm,” the standard governing all police shootings. The fact that many of us describe such shootings as “justified” is not to belittle these tragedies but to recognize the underlying exigencies that control the use of lethal force.

In the slow motion videos of shootings played on cable television, there often seems to be endless opportunities for de-escalation or alternatives to lethal force. None of us want to hear of the loss of another young life like Bryant’s. But Biden’s suggestion — that “instead of anybody coming at you and the first thing you do is shoot to kill, you shoot them in the leg” — is not exactly how it works, practically or legally.

When officers use lethal force, it is meant to “neutralize the threat,” not to kill someone. They are trained to fire for the center of the body because it minimizes the chances of a miss while maximizing the chances of neutralizing the suspect. Shooting for the hand or leg or weapon can endanger others and may not neutralize a suspect. Likewise, officers are not trained to use nonlethal force, like a taser, to stop a lethal attack. Tasers are sometimes ineffective in neutralizing suspects. If there is an imminent threat of lethal force, officers use lethal force to end that threat.

These dangers were evident in 2019 when Aaron Hong ran at police with a large knife as officers literally begged him to drop the knife and even moved back. Hong lurched at an officer who fired seven rounds. Despite the close proximity and aiming for the body, most of the shots appear to have missed, but Hong was hit at least once. He then got up despite his wound, ran at another officer and was grabbing his weapon when a third officer fired four more rounds. Having Biden shout from the sideline to “Shoot for the leg! Shoot for the leg!” would not have helped.

The key is the legal threshold for the use of lethal force. The Columbus police manual states: “Sworn personnel may use deadly force when the involved personnel have reason to believe the response is objectively reasonable to protect themselves or others from the imminent threat of death or serious physical harm.” That language is derived from Tennessee v. Garner in 1985 and other Supreme Court cases.

While former Obama aide Valerie Jarrett insisted that police do not need guns “in order to break up a knife fight,” the person about to be stabbed may view the matter as a tad more urgent. Yes, the police officer could have waited while calling for Bryant to drop the knife — but the other girl might be dead today, and her family might object to the officer’s failure to protect her.

By definition, the use of lethal force is justified only when a threat of death or serious bodily harm is “imminent.” At that point, even if trick shooting or firing at limbs were feasible, an imminent threat must be neutralized without delay. In the case of the Bryant shooting, police had been told that a person was trying to stab someone. Officer Nicholas Reardon was immediately faced with Bryant charging at another girl with a knife. She was in close proximity to the other girl and swinging the knife toward her when he fired four times. Under the governing standards for the use of lethal force, it was a justified shooting.

A similar scene unfolded recently in Knoxville, Tenn. Police there confronted Anthony Thompson Jr., 17, in a bathroom stall after being called by his girlfriend with a domestic abuse claim. When they tried to handcuff Thompson, he reached for a gun in his hoodie. It discharged, and officers thought he was firing on them. They shot and killed Thompson. Even with this close proximity and shooting for the center of the body, some shots apparently missed and hit another officer. Indeed, in the confusion, police thought the wounded officer had been shot by Thompson.

I have both sued and defended law enforcement officers. They work in a violent, unpredictable environment that few of us ever experience. These scenes are adrenaline-driven, chaotic moments that often allow few seconds for critical decisions. Even with extensive training, officers can shoot each other or bystanders in the flash of an encounter.

Yet, on CNN and MSNBC, hosts and guests insisted that Officer Reardon could have waited and that knife fights are common between teenagers. CNN guest and Rutgers University associate professor Brittany Cooper declared that “no Black person is truly going to be safe if we cannot be having a bad day, if we cannot defend ourselves when we think we’re gonna get jumped.”

Of course, most people who police meet are having “a bad day,” which is why the police were called. Lethal force is used in only a small percentage of these encounters. Studies show the vast majority of the roughly 1,000 civilians shot annually were armed or otherwise dangerous. According to the Washington Post, in 2019, police shot and killed 55 unarmed persons, including 14 Black and 25 white individuals. That does not mean racism is not a serious, long-standing problem in such shootings. However, this national debate over lethal force standards will achieve little unless we recognize the practical and legal realities of violent encounters.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.

226 thoughts on “The Difficult Realities Of Lethal Force”

  1. Jonathan: A lot of police chiefs and police officers around the country are no doubt grateful for your series of columns defending the use of deadly force against Black citizens. You defended Derek Chauvin right up to the end–just before the jury found Chauvin guilty of murder. In this column you point out that police work is in a “violent, unpredictable environment”…with “scenes [that] are adrenaline-driven, chaotic moments that often allow few seconds of critical decisions”. Sounds like the defense you would have made in your closing argument in the Derek Chauvin trial had you been chosen as his defense counsel. Of course, you know that wasn’t what happened in the George Floyd murder. Chauvin chose to end Floyd’s life, slowly and methodically by keeping his knee on Floyd’s neck for over 9 minutes while three officers stood by passively. This was not a “violent, unpredictable environment” where “critical” decisions have to made–the fallback. position you seem to take when police officers shoot and kill Black people. You seem to think that President Biden and commentators on CNN and MSNBC simply don’t “recognize the practical and legal realities of violent encounters”. with Black people. OK, let’s consider the actual “realities” of policing in the US. US police kill civilians at a much higher rate than in other wealthy countries. The number of people killed by law enforcement per 10 million populations in recent years was 33.5 for the US. The next closest country was Canada at 9.8, followed by England and Wales at only 0.5. So far this year police in the US have shot dead 50 whites, 30 Blacks and 20 Hispanics. Do the math! For Blacks and other minorities in the US the threat of police violence is ever present. I have a Black friend who describes the conscious calculations he has to make every day before he leaves the house. If he drives his relative new Mercedes should he take a white friend with him? Perhaps he should take public transportation instead? Should he avoid shortcuts through predominantly white neighborhoods because that might draw unwanted attention by police? If he decides, instead, to take a run through his neighborhood should he avoid wearing a hoodie? These are calculations I don’t have to make as a white person–a situation that should be intolerable in 2021 America! If you are really serious about confronting racism in policing in the US then stop defending police who use deadly force against Black Americans in alarming numbers.

    1. First, I have a lot of sympathy for the distress your friend is suffering from. Nobody of any race or ethnicity likes being treated or seen through the filter of stereotypes. But if we are going to do calculations, as you say, let’s get the full rational picture.

      In 2019, 14 unarmed Black citizens were shot and killed by police, out of a population of 42 million. That represents about 0.2% of the roughly 7500 homicides of Black Americans (overwhelmingly committed by folks of the same race).

      Overall (for all races), police fatally shot 55 unarmed people, out of 330 million. By contrast, more were killed by bees and wasps, or from animal bites. The overall homicide rate was about 14,000, while car accidents killed about 37,000, falls killed 39,000, unintentional poisoning killed 65,000 (total accidental deaths over 170,000). Another 47,000 died from suicide. Add another 1,700,000 from major medical conditions like heart disease, cancer, stroke, diabetes, etc.

      So while I emotionally sympathize with the effects of feeling so much fear, I do not find it rational for people who are unarmed and not committing crimes to be in constant fear of police – who account for a truly tiny portion of deaths for any race. Statistically, people of all races are safer walking through white neighborhoods, which is why so many Black folks in the middle class or above migrate to (mostly) white or mixed neighborhoods when they are able (if they weren’t already born there).

      An average white person who is unarmed and not engaged in criminal activity doesn’t have to plan their day to avoid being killed by police, but neither does a similar average Asian-American, Black, or Latino/Latina/Latinx citizen. In terms of mortal threats, police are way, way, way down the list – for all races and ethnicities. Yes, a few people (out of the third of a billion living in the US) are killed by police every year anyway, but far under one in a million. If that scares you, you should be 500 times as terrified of being killed by a civilian criminal, and thousands of times more afraid to drive.

      But very few people are conscioiusly aware of the statistics; what they “know” is what comes to their attention, largely through broadcast and social media. While roughly twice as many white folks are killed very year by police, they almost never make the national news, so people’s subjective misimpression is that it’s overwhelmingly Black folks who are killed – because they are in the news. Thanks to a mixture of enabling technology, “it if bleeds it leads” newsworthiness standards, and a specific obsessive focus on every Black victim, many Black folks today have a completely counterfactual “impression” of how much danger police are to them. It “feels” like a tsunami of police violence, because you can read about a case every week or two. The amygdala, in the brain, gauges dangers intuitively, and it evolved when we overwhelmingly lived in small bands; it literally cannot understand thousands much less millions and billions of people. If one person a month from your band gets killed when going into the swamp, our amygdala is functionally evolved to feel like it’s a major and immediate danger to go there. Our emotional selves don’t understand filtering to extact anecdotes from an infinestimally small portion of an unimaginably vast population. The danger thus feels thousands to millions of times larger than rational thought would make it.

      The only reason you as a white person don’t make that daily calculation is that the media hasn’t (accidentally or purposefully) created quite as distorted a mental model of the relative danger in your unconscious mind.

      But even among white folks, their impressions of danger ARE very distorted. For the last 30 years (before last year, when it began rising dramatically, but 2020 was an unusual year) I’ve watched the US crime rates – violent and property – drop dramatically, typically by 2 fold to 5 fold, depending on the crime. Over that same time period, polls show that US citizens’ impression of crimes rates has almost doubled; most people think that crime has risen sharply (at least nationally, if not locally). That’s a dramatic disconnect from reality, fostered by that same media that fosters the fear of police among African-Americqns. I’m not saying the media has the intentions per se of creating false impressions as the end goal; mainly they just want to sell the news and attract advertisers. But fear and crime stories grab people’s attention more than anything else, so they feed up such stories, increasing the exposure people receive, even as the actual crime rates have greatly dropped. The disconnect from reality is an unintended byproduct.

      So my attitude towards your friend’s subjective experience is sympathy, because it’s hard to live in that much fear – but I place most of the blame for the grossly exaggerated degree of fear on the media’s unintentional but dramatic misdirection of unconscious impressions.

      I realize that “police violence” does not just mean fatal encounters, but the emotional core of the fear is about that. There is research about non-fatal police treatment too; Fryer found that police were about 15-20% more likely to use physical force (like tasing, throwing to the ground, etc) for Black arrestees (tho he could not control for factors like degree of resisting arrest, which could differ between groups). But that’s much smaller than differences between cities and regions, so Black folks in some areas are much less likely to be roughed up by police than white folks in other areas. Most people have the media-trained impression that the difference is far, far more dramatic and base their emotional reactions accordingly. No difference is OK, but we require perspective to discern whether we need an adjustment in training etc, or complete destruction and replacement with some as yet unknown alternative to police, as some advocate. The evidence is more on the former end, the activists are more on the latter.

      And there is the subject of non-violent encounters, like just being stopped and questioned. That’s a subject for another day; I just wanted to acknowledge it for now. This is more than long enough.

      International comparisons. Alas, the higher rates of police shooting in the US (we come in around 30th place among nations, and at first place among wealthy nations) is real, even if it’s a truly miniscule portion of the dangers we face every day. And it’s related to the similarly much higher rates than other wealthy nations, of citizens killing each other, and the police. There are about as many guns as people in the US, and vast numbers of them are in the hands of criminals. A routine traffic stop is far more likely to turn potentially deadly for police (and bystanders) in the US than in most European nations, and the police are quite rationally more cautious. There are amygdala conditioning issues with the police as well; I am not saying that there is no need for improvement, because there obvious is a strong need. But reforms need to be kept in rational perspective, rather than being completely hijacked by irrational emotions which are disconnected from objective reality.

      One of my hopes is that the Biden administration will manage to force through more comprehensive reporting and monitoring of police. We need better and more complete statistics to guide reform efforts. I personally believe, from my study, that a great portion (not all) of the cases attributed by activists to police racism are mis-diagnosed, so making police take anti-bias training (which research shows is likely to backfire anyway) is not going to improve the situation. We need sober assessment of the real causes, and creative but rational interventions, along with monitoring of what works and does not work. Most activists today seem uninterested in such boring work, and more interested in the simpler tactic of reinforcing simple black/white thinking and narratives.

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