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Law Professor's Research Raises Bar For Police Use Of Force


Long before George Floyd's death and the fight for criminal justice reform that followed, there were efforts underway to change how and when police used deadly force. In most states, police officers are allowed to use deadly force if they have a, quote, unquote, "reasonable belief" that the action is necessary. One professor set out to change that standard and has been successful.

Cynthia Lee is with us now. She teaches criminal law and criminal procedure at George Washington School of Law, where she researches the use of force. In 2018, she wrote a law journal article proposing that states raise the standard when an officer is allowed to use force. That research has been adopted by multiple jurisdictions so far. And she's with us now to tell us more about it.

Professor Lee, welcome. Thank you so much for joining us.

CYNTHIA LEE: Thank you, Michel, for having me. I'm just delighted to be here.

MARTIN: So as we mentioned, you crafted, let's say, a model that would require the use of force to be necessary, proportionate and based on the immediate need. Could you talk a little bit more about this and how this would help the situations that so many have seen unfold in recent years that have been so troubling to the public?

LEE: The vast majority of use-of-force statutes focus solely on the officer's beliefs and don't focus on the officer's actions. Under my model statute, as adopted by D.C., Connecticut and Virginia, a police officer can't use deadly force unless, one, the officer reasonably believed it was immediately necessary to use such force to protect the officer or another against a threat of death or serious bodily injury, two, the officer's actions were reasonable under the totality of the circumstances, and three, the officer exhausted all other reasonably available options prior to using deadly force. So in other words, just like the law of self-defense that applies to civilians, the new legislation that applies to police officers requires necessity, immediacy and proportionality with an overlay of reasonableness.

MARTIN: And as you just mentioned - that Connecticut, Virginia and Washington, D.C. have already adopted your model in some form. And, of course, as you would imagine, people have criticized this. Some critics say it will cause officers to second-guess split-second judgments that they have to make on the spot when their lives or other people's lives could be in danger. How do you respond to that?

LEE: Well, that is a legitimate concern. We certainly don't want officer lives to be jeopardized. But when it comes to a situation where an officer fears for his life or that of another officer or another person, the instinct for self-preservation kicks into play. And - so even if there is a law on the books that encourages or tries to encourage the officer to only use force as a last resort, the officer's desire to preserve himself or herself will override that law.

But what the law, the legislation, the new legislation tries to do is to encourage the officer to take steps that will increase the time and distance between the officer and the subject so that the officer doesn't have to be put into that situation where they have to make split-second decisions. And the new legislation provides more guidance to jurors than other police use-of-force statutes in two specific ways. First, it requires the jury to consider whether the officer engaged in de-escalation measures. And second, the new legislation allows the jury to broaden the time frame and consider whether anything the officer did before using deadly force increased the risk of a deadly confrontation, rather than narrowly focusing only on what was happening at the moment when the officer used deadly force.

MARTIN: So before we let you go, you know, about a thousand people are fatally shot by the police each year. This according to The Washington Post. And this is information that we are only really seeing in recent years because nobody was really keeping track of this in any meaningful way until a couple of years ago. But the arrest rate is around 1%, and I'm sure the conviction rate is even lower than that. And I'm just wondering why you think that is, why you think there's a reluctance to hold police officers accountable for the use of deadly force, even when people feel that it exceeds a reasonable standard and if you think that these law changes will change that. Or is it - there's just something in the way people are accustomed to thinking about policing that really isn't attached so much to the law but more about how people feel about it? I just wonder, what are your thoughts about that?

LEE: So you're absolutely right that it appears that approximately 1,000 individuals are killed by police each year. Now, I should say that the vast majority of these police homicides are killings that would be considered justifiable under any standard, either currently or on the books in the future. But that still doesn't account for the many who get - who are shot and killed or killed by police who actually did not pose a deadly threat and for whom there are questions about whether the police use of force was really appropriate or whether it was excessive.

MARTIN: Some of your research and the research of others indicates that part of the problem here is implicit bias, that people are just more inclined to see a Black person as threatening, particularly a Black man. If that's the case, is changing the standard by which people can use force, is that enough?

LEE: Well, I do think that changes in the law on police use of force may not immediately change what jurors do in these cases. But I do think law reform can influence what police officers do on the ground and thus change police culture. If it's in the - if they know it's in the law and their actions will be scrutinized by jurors if they are charged with a crime, this can better influence police behavior than simply having it in the police training manuals. But I do think police training is extremely important. And on a positive front, there are some efforts right now being made to address implicit racial bias in policing. But there's no one magic solution that's going to overnight accomplish the change that we want. But I do think that efforts on multiple levels will eventually bring about change.

MARTIN: That was professor Cynthia Lee. She is a professor of law at George Washington School of Law. Professor Lee, thank you so much for talking to us today and sharing your expertise.

LEE: Thank you, Michel, for having me.

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