Strict Liability In Police Shootings

As of Oct. 5, 754 people, or almost three people per day, were shot to death by police officers in the United States in 2015. This information was not compiled by a law enforcement agency, although it easily could have been. Instead, The Washington Post has been gathering the data and posting it daily on its website. You can find the tally by googling "Washington Post police shootings."

Despite its penchant for collecting data on crime, the U.S. Department of Justice has refused to gather information of this sort or, in the alternative, if it has gathered such information, it has refused to publish it. 

I have no idea whether this represents an increase or decrease in shootings, or whether it is simply business as usual on the streets. Several recent violent deaths of young black men have driven the issue of police violence to the front pages in the past year.

But the statistics suggest this is not a race-driven issue. Of this year's fatalities, 28 involved unarmed black men. Almost half, or 364, involved Caucasians. The overwhelming majority of victims are men. A total of 190 were black, and 122 were Hispanic. Almost 200 of those shot demonstrated obvious signs of mental illness, and the age cohort containing the most shootings involved 25- to 34-year-olds, a total of 234 people.

The Post ought to win the Pulitzer Prize for its effort to develop a comprehensive database on police shootings, and lawmakers on the local, state and federal levels should spend long, painstaking hours studying this data. While I won't go so far as to call this an epidemic of police shootings, it is a remarkable record of state-sanctioned violence.

It will take a radical change in the law to address this level of violence. I am proposing strict liability for police departments each and every time an individual is shot dead by an officer. Only when departments are held accountable for the deaths caused by their officers will departments have the incentive to provide better training on how to avoid violence.

As things stand, officers are more often than not excused for the deaths they cause. The phenomenon of "suicide by cop," for example, pits the disturbed citizen again an officer. In these tragic cases, a citizen provokes lethal violence with the officer by deliberately threatening the officer's life.

Of course, officers should be able to protect themselves against threats. Officers should also be able to protect members of the public from imminent harm. But a recent exchange at the Practising Law Institute in New York City at a seminar on civil rights litigation showed why police violence is so easily forgiven.

Erwin Chemerinsky, dean of the University of California at Irvine law school, questioned why the U.S. Supreme Court was so quick to hold that it is reasonable for a police officer to shoot to kill a motorist who decides to flee a motor vehicle stop, thus placing others in danger. Wouldn't it make more sense to note the license number and apprehend the fleeing motorist later?

Another panelist, a member of the New York City corporation counsel's office, was quick to take exception, questioning why officers ought not pursue the person who flees officers, and why deadly force ought not to be used to protect the public from a fleeing motorist.

A little-used doctrine called the "state-created danger" doctrine could easily say that it takes two to cause a chase: the pursuer and the pursued. A chase ends once the pursuer quits. Why not train officers to make risk assessments, rather than set them lose, guns blazing, with judicial cover, in response to minor provocations?

A judiciary too quick to hold the use of deadly force reasonable does the public no service. Officers use lethal force in our name. Any one of us can be a target. Indeed, plenty of us, according to the Post, are.

When police kill someone in the name of public safety, we ought to be asking how the killing could have been prevented. Requiring police departments to pay damages to the estates of those they kill, even in justified shooting deaths, will force police departments to get creative about training on use of force.

Right now, the prevailing attitude seems to be to shoot first, and to ask questions later, all the while hoping the courts will answer the questions without the need for a trial. It's small wonder so many have lost confidence in police departments. •



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