48 Criminal Law Bulletin 428, 2012
51 Pages Posted: 9 Dec 2014
Date Written: March 30, 2012
The controlling purpose of this Article is to reach discovery or agreement on why police kill so often on facts that do not call for deadly force. I hope it is not out of order to qualify that I have absolutely no interest in badmouthing the police. In fact, I accept with equanimity the accuracy of many of their claims, even those appearing in the rants of ex-police officers, who view Rodney King as the symbol of all that is wrong — not with police — but with their critics. The idea that those drawn to policing either want to bully or be bullied, are racist, or share any other negative trait found less frequently among the general population may have some basis in reality. However, nowhere do I suggest that police are somehow bad people whose badness is manifested by their unnecessarily killing people. Instead, my aim is to uncover why presumptively normal, well-adjusted, well-intended professionals who genuinely want to help others would be prone to overreact to perceived physical threats that they encounter on the street.
The conventional argument is sound, at least to a point: police typically kill only when necessary; when they kill unnecessarily, it is a function of justifiable fear, which precludes them from perfecting their information about what sort of threat they are facing before reacting to it with deadly force, nondeadly force, or no force at all. Given time, police would be as competent as anyone to separate deadly from nondeadly threats (perhaps more so due to specialized academy and in-service training they receive), but they have no such luxury. Rather, any time police devote to sorting out deadly from nondeadly threats only increases the likelihood of their becoming victims themselves, a risk they should not be expected to assume. Where the conventional argument holds both that police are as good as or better than the rest of us at telling real from perceived threats and should not be expected to act or withhold action at great risk to themselves, it is my position that neither is necessarily true. The perceptive powers of police are, in at least one important respect, peculiarly inferior to ours and, unlike us, they have assumed risks that we have not. The perceptive powers of police are inferior due to the function of paranoia, which, in a nutshell, is a psychosis in which the patient fends off a distressing idea bought about by experience by re-formulating a self-judgment (which the patient must accept) as a judgment from the outside (which the patient may reject). As for the socially desirable amount of risk-taking that should be expected of police, the conventional argument that police should not be expected to be particularly brave in quickly unfolding circumstances misdescribes what it takes (or should take) to be a competent police professional — what competent policing entails or should entail.
Ultimately, this Article is a tract on fear: how it manifests itself and how, due to paranoia, those whose fear-based responses should be best are often worst, but for reasons that are explicable in psychological terms unburdened by the crude stereotyping that often characterizes discussions about police and policing. Put slightly differently, the central role that fear plays in policing explains why the number one rule of police work — “go home alive at the end of the day” — is more a vice than a virtue.
Keywords: Criminal Law, Police, Deadly Force, Ferguson, Justifiable Homicide, Excessive Force, Mistakes, Fear
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