Officer-Created Jeopardy: Broadening the Time Frame for Assessing a Police Officer’s Use of Deadly Force

When a police officer’s use of deadly force kills or seriously injures a civilian, that officer may face civil liability or criminal prosecution. In both civil and criminal cases, a critical question that the jury must decide is whether the officer’s use of force was reasonable or excessive. As a general matter, the jury will be advised that it should consider all the relevant facts and circumstances—the totality of the circumstances—to answer this question. An officer’s decisions and conduct prior to that officer’s use of deadly force can create jeopardy for the civilian and the officer, increasing the risk of an officer-civilian encounter turning into a deadly confrontation. In cases involving officer-created jeopardy, the trial court must decide whether to restrict the jury to considering only the facts and circumstances known to the officer at the moment the officer chose to use deadly force or allow the jury to consider antecedent conduct of the officer that created or increased the risk of a deadly confrontation. The lower courts are split over whether a narrow or a broad time frame is appropriate and the U.S. Supreme Court has not explicitly taken a position on this issue. This Article argues that courts overseeing criminal prosecutions of police officers should broaden the time frame and allow juries assessing the reasonableness of the officer’s use of deadly force to consider pre-shooting conduct of the officer that created or increased the risk of a deadly confrontation.