Subtitle

The Importance of Constitutional Limitations on Lethal Use of Force in Police

Document Type

Article

Publication Date

2016

Abstract

The year-long period of police killings of unarmed black civilians across the United States between July 2014-15 has been the subject of broad condemnation and discourse, including in the author’s previous police reform article titled Out of Breath and Down to the Wire: A Call for Constitution-Focused Police Reform (59 Howard L.J. 5 (2015)).

In the year following Professor Marcus’s Howard Law Journal police reform article, Marcus continued to track police reform efforts that transpired in the aftermath of the 2014-15 killings. This article, From Edward to Eric Garner and Beyond: The Importance of Constitutional Limitations on Lethal Use of Force in Police Reform, describes how police accountability is slowly beginning to improve, particularly with indictments and convictions being more likely where police killings are captured on video. However, in the killing of Tamir Rice, even video of a police killing of an unarmed twelve-year old boy within seconds of police arriving at a benign playground scene where no one was being threatened, did not result in an indictment or, arguably, any police accountability.

In chronicling the police reform efforts that transpired in the year following the 2014-15 police killings, this article details reform efforts through White House and Department of Justice initiatives, investigations, and reports; by civil rights activists; and by the law enforcement community. As to the latter, the article describes how revised lethal use-of-force recommendations issued by the Police Executive Research Forum includes a specific recommendation to ensure that the “21-foot rule,” which Marcus’s Out of Breath and Down to the Wire article had condemned, is no longer a part of police lethal force training. Rather, there is an emphasis in the myriad of reform efforts on measures emphasizing, for example, transparency, de-escalation, community involvement, bias awareness and training, and use-of-force training that emphasizes constitutional standards rather than the previously abused 21-foot rule, the origins of which were not based on constitutional law. This article recommends that in replacing the 21-foot rule with constitutional standards limiting appropriate use of lethal force by police, police trainings must emphasize, along with other constitutional principles, the critical limitation set forth by Tennessee v. Garner prohibiting the use of lethal forced against unarmed fleeing individuals. It is this standard that continues to be offended by a pattern of “he shouldn’t have run” rationalizations that still tend to follow police killings of unarmed civilians in this country.

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