“Lawful but awful.” That’s how Chuck Wexler described the kinds of fatal shootings by officers that police want to avoid in the future. Last Friday, the group Wexler oversees, the Police Executive Research Forum (PERF), convened more than 200 leaders from some of the largest police departments in the country to discuss ways cops can avoid confrontations that lead to civilian deaths.
"We think this is the issue of the decade for American police departments," said Wexler in an interview with Governing on Monday.
No national group can mandate policy changes for the roughly 18,000 police departments around the country, but the PERF report outlines 30 guiding principles on use of force that departments can voluntarily adopt. The recommendations come from two years of interviews and field research with police chiefs. The common theme throughout was that departments could minimize “lawful but awful” shootings where police have a solid legal defense for firing a weapon, but might have avoided the killing and the public outrage that usually follows. For example:
- When engaging a person with an edged weapon, officers should sometimes pull back to keep a safe distance. (Instead, many academies teach cadets to hold their ground and open fire out of self-defense.)
- Departments should prohibit the use of deadly force when police encounter someone who shows signs of being suicidal rather than homicidal.
- When considering the use of a firearm, police should first weigh the severity of the response (firing a gun) against the severity of the threat posed by the person.
Even though the recommendations came from interviews with police chiefs, some of them still faced resistance by the law enforcement leaders in the room.
For example, the report calls for officers to consider whether the general public would view their use of force as proportional to the threat posed. That’s too subjective, said William O’Toole, who runs the Northern Virginia Criminal Justice Training Academy. He said it would be difficult to train officers to anticipate what the general public would think was too much force in a given situation.
PERF also recommends that departments hold themselves to a higher standard than the legal requirements set forth in a 1989 U.S. Supreme Court case, Graham v. Connor. Under that ruling, officers’ use of force is legal if their perception of danger can be deemed as “objectively reasonable” -- even if their perception of danger turns out later on to be wrong. While that ruling has resulted in prosecutors and grand juries often finding that a fatal shooting by an officer was not a crime, PERF now argues that officers should be trained to pursue other tactics whenever possible.
Cathy Lanier, the police chief in Washington, D.C., laid out the problem they’re trying to correct: “What they’re allowed to do turns into a justification for shooting. They’re shooting because they could -- not because they had to.”
The Graham v. Connor legal standard still stands as a bare minimum, but Wexler told the audience that departments should hold officers accountable for deviating from best practices that could have avoided fatal shootings.
Edward Flynn, the Milwaukee police chief, provided an example: One of his officers shot a mentally ill man who was beating the officer with a night stick. Earlier in the encounter, the officer correctly identified the man as mentally ill but then broke from his training by making the man stand up and undergo a pat search. While the department determined that the officer was justified in firing a weapon to protect himself, Flynn fired the officer because his actions violated department policy and put him in the dangerous situation that resulted in a civilian death.
Ed Davis, a former police commissioner in Boston, said he feared the PERF recommendations would be misinterpreted by cops and courts. Cops might view the more stringent requirements as chiefs deserting their officers, and Supreme Court justices might see the change as evidence that Graham v. Connor gave officers too much legal cover when a fatal shooting occurs.
Wexler disagreed. The legal standard for when a cop can fire in self-defense doesn't take into account proportionality or public trust. "The threshold," he said, "is very low."
*This story has been updated.