Unarmed and Dangerous

Patterns of Threats by Citizens During Deadly Force Encounters with Police

Jon Shane, Zoë Swenson

• Publisher: Routledge
• Year: 2018
• Print ISBN:
  9781138322592
• eBook ISBN:
  9780429812996
• Topic: Social Sciences
• Subtopic: Criminal Law
• Index: Social Sciences

There is tremendous controversy across the United States (and beyond) when a police officer uses deadly force against an unarmed citizen, but often the conversation is devoid of contextual details. These details matter greatly as a matter of law and organizational legitimacy. In this short book, authors Jon Shane and Zoë Swenson offer a comprehensive analysis of the first study to use publicly available data to reveal the context in which an officer used deadly force against an unarmed citizen. Although any police shooting, even a justified shooting, is not a desired outcome—often termed "lawful but awful" in policing circles—it is not necessarily a crime. The results of this study lend support to the notion that being unarmed does not mean "not dangerous," in some ways explaining why most police officers are not indicted when such a shooting occurs. The study's findings show that when police officers used deadly force during an encounter with an unarmed citizen, the officer or a third person was facing imminent threat of death or serious injury in the vast majority of situations. Moreover, when police officers used force, their actions were almost always consistent with the accepted legal and policy principles that govern law enforcement in the overwhelming proportion of encounters (as measured by indictments).

Noting the dearth of official data on the context of police shooting fatalities, Shane and Swenson call for the U.S. government to compile comprehensive data so researchers and practitioners can learn from deadly force encounters and improve practices. They further recommend that future research on police shootings should examine the patterns and micro-interactions between the officer, citizen, and environment in relation to the prevailing law. The unique data and analysis in this book will inform discussions of police use of force for researchers, policymakers, and students involved in criminal justice, public policy, and policing.

1 Introduction

The State’s right to use sanctioned violence against its citizens is born of the notion that people give up their individual right of reparation in favor of the State to do their bidding for them (the social contract, Rousseau, 1762/1968). The State legislates on behalf of the individual to avoid a “state of nature,” where individual desires and impulses are not tempered by reason and, worst of all, society would live in “continual fear and danger of violent death, and the life of man, solitary, poor, nasty, brutish, and short” (Hobbes, 1651/2012, p. 102). To ensure compliance with its laws, the State designates enforcement agents with a limited set of powers. When an enforcement agent uses force to gain compliance with its laws, the citizenry is understandably concerned since force is arguably the most contentious aspect of government intrusion into personal liberty, upon which democracy is built; as such, police use of force has been a source a political, social, and academic interest dating to at least the 1960s (Harding & Fahey, 1973; Jacobs & Britt, 1979; Kobler, 1975a, 1975b; McEwen, 1996; Robin, 1963; Sherman, 1980; Sherman, Cohn & Gartin, 1986), including the laws and crimes that justify deadly force (Sherman & Langworthy, 1979). When an enforcement agent is believed to act outside their formal authority, the State activates an accountability mechanism that is intended to protect the citizenry from unlawful and oppressive government practices, which reinforces the supremacy of the rule of law over the rule of man.¹

The Fourth Amendment to the U.S. Constitution protects citizens against unlawful government intrusion (formally known as seizures); any use of force by police must be reasonable in this regard, where reasonable is defined as the balance between the right of the State to have its laws obeyed against the individual’s right to be free from unlawful government intrusion (United States v. Place, 1983). Before any use of force can be constitutionally permissible, it must be both proportional and immediately necessary. This assessment is context-dependent and idiosyncratic to the location, officer, offender and all of the situational conditions that inform the totality of the circumstances (Illinois v. Gates, 1983). The “totality of the circumstances” standard recognizes there is no single determining factor for permissible police action; rather, the judicial system must consider all the facts as they appear to an officer in a given situation and conclude from the whole picture whether probable cause exists (permissible police action), or whether a crime has been committed under color of law (impermissible police action).

Any claim by a citizen that they have been subjected to excessive force—deadly or non-deadly—during the course of an arrest or investigative detention is analyzed under the Fourth Amendment’s “objective reasonableness” standard (Graham v. Connor, 1989). The Graham standard dictates whether the officers’ actions are “objectively reasonable” given the facts and circumstances presented to them at the time force was applied and without regard to their underlying intent or motivation. Although the test of reasonableness does not lend itself to a “precise definition or mechanical application” (Bell v. Wolfish, 1979), its proper application must be judged from the perspective of a “reasonable officer”² (Alpert & Smith, 1994; Terrill, 2009) on the scene, rather than with the “20/20 vision of hindsight,” and its calculus embodies an allowance for the fact that police officers are often forced to make split-second decisions about the type and amount of force necessary in a given situation.

Many onlookers do not necessarily understand the law’s standard of reasonableness; instead they rely on their personal impressions of reasonableness. Furthermore, media portrayals of police and use of force encounters can negatively influence public sentiment (Pickett et al., 2015); indeed, some organizations and/or individuals are often incensed about how and against whom police officers use force, and they often castigate prosecutors and courts for failing to punish police officers for what they perceive as a criminal act (Bauerlien & McWhirter, 2016; Buckley et al., 2017; Calacal, 2017; Chamberlain, 2017). This reaction suggests that any use of deadly force against an unarmed citizen is unreasonable, biased, or unwarranted. The tone of such criticisms is often as vociferous today as it was in the 1960s during the tumultuous civil rights era (Kerner Commission, 1968; Reiss, 1968), although subsequent research suggested that some allegations of police use of excessive force during that period were overstated (Friedrich, 1980).

Nevertheless, the critics’ reactions are often facile and predicated on characteristics that do not or should not have any impact on the imminence of a threat, such as a citizen’s race (e.g., Calacal, 2017); indeed, several studies on police use of force reveal no identifiable patterns that imply a relationship between an officer’s race/ethnicity and an offender’s race/ethnicity (Lawton, 2007; McCluskey, Terrill & Paoline, 2005; Morabito & Socia, 2015; Paoline & Terrill, 2005; Phillips & Smith, 2000). In this vacuum of contextual details, an appeal to emotion arises; logic and reasoning are cast aside in favor of personal experience, vicarious anecdotes, and highly sensational incidents that signal a “crisis” or an “epidemic” to political and social pundits. Yet, such media-filtered facts and lack of legal knowledge often appeal to emotion, and may carry more force than reason, individual case facts, judicial processes, and law, but may be fraught with lack of knowledge/information, misinterpretations, or misinformation. Assumptions such as the illegality of a police officer shooting an unarmed citizen frequently lead some to demonize police and demand a federal investigation and/or an independent prosecutor for civil rights violations, despite little understanding of the complexity of the law, or of police training and policies³ (Barret & Belkin, 2016; Hernandez, 2016; Hernandez & Repart, 2016; Williams, 2016), not to mention the dynamics of each individual case. In cases where the incidents involve (mostly) white officers and unarmed African-American/Black citizens, and the federal government declines to accept the case for investigation, or when they do accept the case and the outcome is not to the public’s liking, many deride the criminal justice system as one where African-Americans are “dehumanized” (Goff et al., 2008; Owusu-Bempah, 2016), where whites are implicitly favored (Smith, Levinson & Robinson, 2014), or where police officers tend to hold more implicitly biased⁴ views than others in society (Nix et al., 2017; Sidanius et al., 2003). Yet, measuring implicit bias has been heartily criticized by a number of measurement psychologists (see e.g., Brendl, Markman & Messner, 2001; Fiedler, Messner & Bluemke, 2006) and has demonstrated poor predictive ability (Oswald et al., 2013).⁵

When analyzing real-world shooting data involving working police officers instead of simulated exercises with students or police officers in a controlled/laboratory setting, the findings suggest that Black offenders are not disproportionately the target of police shootings by officers, at least in one Southwestern municipal police department in the United States; Black offenders are approximately one-third as likely to be shot as other offenders (Worrall et al., in press). Similar research involving police officers of the NYPD found that

Black officers were 3.3 times more likely to shoot than white officers ( p = 0.01)… . This finding runs counter to concerns that white officers are overrepresented among officers using lethal force and is consistent with several previous studies of officer race and police use-of-force.

(Ridgeway, 2016, p. 5)

These studies challenge the current bias narrative across the country that White officers are more likely to shoot Black offenders; these studies also counter the narrative that diversity, in and of itself, within police departments relative to the community they serve will make police officers safe (Barrick, Hickman & Strom, 2014). Thus, it is inaccurate to assume all police officers have the same attitudes or intentions, or would take the same actions in the same cases. Hence, focusing specifically on the case characteristics and details may prove a more objective approach to understanding whether outrage is warranted.

Specifically, one area that has not been explored and may reduce misconceptions or inaccurate characterizations of police motives is the dichotomy of an armed vs. unarmed person (a common focus of the media’s focus or portrayal of officer-involved shootings), which may present a highly skewed view of the actual level of threat facing the officer when a shooting occurs (MacDonald, 2016). There is a widely held assumption by many in the media and probably others that because a citizen is unarmed, that renders them not dangerous or threatening. In fact, there is no data to support such a conclusion. The very sense of being unarmed connotes an imbalanced encounter, with the citizen at an extreme disadvantage, such as someone walking down the street minding their own business. One of the most vivid symbols of the unarmed defenseless citizen is the fatal shooting of Michael Brown in Ferguson, Missouri on August 9, 2014 (U.S. Department of Justice, 2015). Brown’s death galvanized the Black Lives Matter and the “Hands UP… . Don’t Shoot” movements. By their own account, the Black Lives Matter movement views the world as one where “Black lives are systematically and intentionally targeted for demise.”⁶ The Malcolm X Grassroots Movement declared “in 2012, police summarily executed more than 313 Black people—one every 28 hours. The use of deadly force against Black people is standard practice in the US—woven into the very fabric of society.”⁷ This emotionally provocative, broad statement is a conclusion not defended by facts or law.

The actions and rhetoric of some social movements is so highly charged that on August 3, 2017, the FBI assessed that “it is very likely Black Identity Extremist (BIE)⁸ perceptions of police brutality against African-Americans spurred an increase in premeditated, retaliatory lethal violence against law enforcement and will very likely serve as justification for such violence” (p. 2).⁹ The BIE movement (and some of its violent tendencies) traces its history to the 1960s and 1970s, emerging during the Civil Rights Movement with groups such as the Black Liberation Army who advocated “tak[ing] up arms for the liberation and self-determination of black people in the United States” (Federal Bureau of Investigation, 2017, p. 2). New groups such as the Moorish Sovereign Citizens embrace BIE ideology with a mix of anti-authoritarianism, rejecting U.S. citizenship and believing established, conventional government structures are illegitimate. Although there are certainly instances where police use of force may not be justified, or could have been avoided, the consternation drawn from very limited anecdotes (such as Michael Brown) or selective cases does not reflect the rarity of such events, the totality of circumstances under which they occurred, nor the perceptions of threat assessed by the officers involved.

Threats to the public and to the agents that represent the State manifest in different ways and do not necessarily involve weapons/firearms. The perceived physical strength of the citizen, an adroit fighter (e.g., boxer; mixed martial artist), a history of mental illness, or level of impairment from alcohol or drugs are just a few contributing factors the courts will examine when assessing what constitutes necessary force vis-a-vis the threat so faced (Hunt v. County of Whitman, 2006; Krueger v. Fuhr, 1993; Sharrar v. Felsing, 1997). In Sharrar v. Felsing, the Third Circuit provided additional factors to consider:

[t]he possibility that the persons subject to the police action are themselves violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time.¹⁰

Over 30 years before the Sharrar v. Felsing (1997) decisio...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Preface
• Foreword
• Acknowledgments
• 1 Introduction
• 2 Focal Concerns of Police Officers and the Legal Framework
• 3 National Police Use of Force Data
• 4 Data Analysis and Results
• 5 Discussion of the Findings and Policy Implications
• References
• Index