Reforming the Law on Police Use of Deadly Force: De-Escalation, Pre-Seizure Conduct, and Imperfect Self-Defense

This article seeks to contribute to the national conversation on reforming police practices by evaluating the current law on police use of deadly force, identifying problems with that law, and suggesting a modest change to that law in the form of model legislation governing police use of deadly force. Existing statutes on police use of deadly force tend to focus on the reasonableness of the officer's belief in the need to use force. This article suggests that the law should be reformed to explicitly include a focus on the reasonableness of the officer's actions. Under the proposed model statute, in order to be considered a justifiable shooting, the jury must find that both the officer's beliefs and actions were reasonable. To provide better guidance to juries than provided by current use of force statutes, the model statute specifies three factors that the fact finder should consider when deciding whether the officer’s actions were reasonable: (1) whether the victim/suspect had or appeared to have a weapon (and whether he or she refused orders to drop it), (2) whether the officer engaged in de-escalation measures prior to using deadly force, and (3) whether the officer engaged in any pre-seizure conduct that increased the risk of a deadly confrontation. It also borrows from imperfect self-defense law in civilian homicide cases, permitting the jury to find an officer charged with murder not guilty of murder, but guilty of voluntary manslaughter if the officer’s belief in the need to use deadly force was honest but unreasonable or if the officer’s belief was reasonable, but his actions unreasonable.