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Deadly Force : Police Use of Lethal Force in the United States
6. STATE LAWS ON THE USE OF LETHAL FORCE IN THE UNITED STATES State statutes on use of lethal force vary considerably. Some states have the use of deadly force statute included with in a larger use of force statute; others have it in a separate statute; while others list the statute as a “Justifiable Homicide” statute which applies to both law enforcement officers and the public. Nine states and Washington, D.C. have failed to enact any statute on the use of lethal force. All statutes take the approach of setting their own criteria on the use of lethal force in permissive terms, rather than taking the more restrictive approach that is required under international law and standards, which sets out a presumption that force should not be used unless certain circumstances apply. A review of the laws on use of lethal force throughout the United States reveals that some states either explicitly allow the use of lethal force in violation of international standards, or leave the standards they set so vague that it amounts to the same result. The twin requirements of necessity and proportionality are often either presented too weakly, or one or both of these requirements are missing altogether. All state laws fail to meet international law and standards. None of the laws establish the requirement that lethal force may only be used as a last resort with non-violent means and less harmful means to be tried first. The vast majority of the laws do not require officers to give a warning of their intent to use firearms. None of the laws include provisions requiring reporting when an officer uses firearms or when someone dies as a result of other use of force by police, and all laws fail to include measures for accountability. The following are just some examples to illustrate the deficiencies in laws on the use of lethal force in the United States.
6.1 NECESSITY 6.1.1 NON-VIOLENT MEANS AND LETHAL FORCE AS A LAST RESORT When it comes to the principle of necessity – that officers must attempt non-violent measures prior to resorting to the use of any force – and may only use lethal force as a last resort, none of the states include such a standard in their use of force statutes. Only four states provide any mention that other means should be attempted prior to resorting to lethal force; however each of those statutes simply refers to other levels of non-lethal force rather than specifically requiring non-violent means first.92 For instance, “deadly force” is justified in Delaware “if all other reasonable means of apprehension have been exhausted.”93 However, the use of force statute still does not establish a threshold for the use of deadly force, i.e. the existence of an imminent threat to life or of serious injury, and therefore still fails to meet international standards on proportionality.
6.1.2 PERMISSIVE LANGUAGE RATHER THAN RESTRICTIVE Several states’ use of force statutes include permissive language such as “a peace officer may ... if”, or the statutes themselves are enacted as “justifiable homicide”
The Department of Justice has the power to investigate police departments. The “Police Accountability Act”, incorporated into the “Violent Crime Control and Law Enforcement Act of 1994” gave the Department of Justice the authority to bring civil actions in federal courts against police departments accused in engaging in a “pattern and practice” of abuses. For example the DOJ’s civil rights division launched a “pattern and practice” investigation on September 14, 2014 into the Ferguson Police Department (FPD) following the fatal shooting of Michael Brown by an FPD officer. This investigation revealed a pattern or practice of unlawful conduct within the Ferguson Police Department, including that nearly 90 per cent of documented force used by FPD officers was used against African Americans. The DOJ report calls for a series of reforms to be made by the Ferguson Police Department.91
Amnesty International - June 2015
