Police officers are granted wide discretion in the use of their firearms. Allowing officers some discretion is unavoidable, because they must often make difficult decisions in the face of rapidly changing circumstances. Officers, however, may abuse this discretion and cause injury or death unnecessarily. In the face of this danger of abuse by officers, suspects are, in many states, prohibited from defending themselves. While it is better to have a court decide when a police officer has abused his discretion than to allow the suspect to make that decision at the moment of arrest, it is not clear what standards a court should apply in evaluating the officer's behavior. To shed light on this confusion, this Note focuses on a controversial subset issue: the liability of a police officer who unnecessarily creates the need to use deadly force in self-defense. In one case, for example, a police officer violated procedure by abandoning the cover of his squad car and, as a result, was forced to shoot and kill a suspect who he erroneously believed was reaching for a gun.
Courts have looked to criminal law, state tort law, as well as to the U.S. Constitution in evaluating such conduct. As well as disagreeing over what substantive law to apply to officers, courts disagree over which constitutional analysis to apply. This Note seeks to resolve this confusion by evaluating the different approaches courts have chosen and determining which of them is most appropriate. Part I analyzes the possibility of imposing criminal sanctions on police officers who have abused their discretion, but concludes that imposition of such sanctions would be unfair to police officers and could chill the legitimate use of deadly force. Even assuming that it would be fair to impose criminal sanctions, this section concludes that an officer who creates the need to use deadly force should be granted a self-protection defense. Part II briefly analyzes the possibility of imposing state tort liability, and concludes that the imposition of such liability would be an appropriate response. It maintains, however, that only grossly negligent conduct should be subject to such liability. Part III discusses when an officer's misconduct in creating the need to use deadly force rises to the level of a constitutional violation subject to liability under section 1983 of the Civil Rights Act of 1871. It concludes that courts should apply fourth amendment analysis rather than substantive due process analysis in evaluating such conduct, and that an officer's grossly negligent conduct in creating the need to use deadly force should always be found to violate the fourth amendment.
Frank G. Zarb Jr.,
Police Liability for Creating the Need To Use Deadly Force in Self-Defense,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol86/iss8/5