Use-of-Force Social Experiments Expose Officers to Criminal Liability

In civil cases, the 4th Amendment's "reasonableness" standard reflects the operational reality that threat assessments and responses are educated judgments. In time-compressed circumstances, with imperfect information, these judgments will never be perfect or even optimal. Instead, they must simply be reasonable—meaning reasonable people might disagree, and the law should, and usually does, allow for that.

Unfortunately, recent reform legislation in several states and DC involves language that could radically extend an officer’s criminal liability under the controversial theory of “officer-created jeopardy.”

Officer-created jeopardy theorizes that officers might avoid deadly force encounters by mitigating the intent, ability, means, or opportunity of suspects who would otherwise threaten deadly force. True enough. However, under this theory, even if a suspect poses an actual deadly threat to an officer, some have argued that the officer should be held liable if it can be shown that they failed to effectively dissuade the suspect through de-escalation or otherwise exposed themselves to the suspect’s deadly attack. This pre-seizure conduct is considered part of the totality of the circumstances, but without a limiting principle, it provides unrestrained opportunities for speculation and blame-shifting.

Nevertheless, fact finders in some jurisdictions are now statutorily required to consider if any conduct by the officer increased the risk of the deadly confrontation. Of course, merely showing up to confront an armed suspect increases the risk of a deadly confrontation. This mandate expressly requires the second-guessing that the Supreme Court has expressly rejected. They presume a level of predictability and certainty that rarely exists in use-of-force decision-making and will expose officers to assessments heavily influenced by outcome bias and anti-police bias.

The most troubling aspects of the latest round of police reforms include preclusion requirements, de-escalation requirements, proportionality requirements, and officer-created jeopardy considerations. These layered judgments and balancing tests guarantee even the most reasonable, bias-free people will often disagree. In civil cases, if officers can reasonably disagree as to the threat assessment or response, qualified immunity should protect them from liability. Because of the high degree of tactical uncertainty that results from the necessarily imperfect threat assessments and use-of-force responses, liability is assessed only when it would have been obvious to a reasonable officer that their conduct violated the Constitution.

These new criminal statutes and policy updates appear to expose officers to criminal and administrative liability with little chance for them to predict how their decisions and conduct will later be assessed. Without some form of qualified immunity in these criminal and administrative settings, every debatable use of force decision and the pre-seizure conduct that preceded it—not to mention the attendant failure to intervene—exposes officers to arbitrary criminal liability.

Academics like Professor Rachel Harmon and Professor Cynthia Lee have been proposing police use-of-force reforms for years. Their writings reflect a deep frustration with the lack of predictability that "just be reasonable" provides. That said, both of these authors have been clear that many of their proposed solutions have not been applied in the context of policing and that courts will have a tough time fleshing out the application of their proposals. I agree, but I would note that, in the context of civil liability, there is arguably more room to experiment with reform proposals. In civil court, "good ideas" will either fail in the crucible of litigation or rightfully mature into accepted and clearly established law.

Unfortunately, criminal liability is different. Hastily enacted criminal statutes and policies that embody these reform proposals deny officers the benefit of case law to guide their decision-making or help them predict their own criminal culpability. These statutes will begin intense debates and litigation that administrative bodies and courts should resolve before any of us should even think of holding officers accountable under these new provisions.

Progressive reform efforts are, by definition, social experiments. Civic leaders, agencies, and legislators who adopt these new provisions have no way of predicting their application or their impact on public safety, officer safety, or crime reduction. The novel definitions and standards proposed by well-meaning academics are too vague, lack a common understanding, and may very well prove to be beyond human performance limitations. They expose officers to the risk of arbitrary and unpredictable use of force assessments and fail to put officers on fair notice of when their conduct will be deemed criminal.