Out of Breath and Down to the Wire: A Call for Constitution-Focused Police Reform

36 Pages Posted: 7 Oct 2015 Last revised: 11 Aug 2017

Date Written: October 6, 2015


This article chronicles a series of breathtakingly disturbing police killings of unarmed black men (and a child) in a single year’s time, spanning from between July 2014 to July 2015, which have resulted in national outcry and sparked a movement toward police reform across the country. The article details a number of the suggested remedial measures offered to address the problem of excessive lethal police force across the country and concludes that, among the proposed reforms, one of the most important is a renewed emphasis of critical constitutional limitations upon permissible lethal police force and other unjustified treatment of individuals who are fleeing the police. Any meaningful police reform must emphasize, in particular, the Constitution’s prohibition of deadly police force against fleeing, unarmed civilians, and others who do not pose an imminent threat of physical harm to others, as well-established since Tennessee v. Garner.

The article further documents a troubling absence of Constitution-focused use-of-force emphases in police trainings and practices across the country. This deficiency inevitably has helped facilitate general misunderstandings among police and civilian communities alike regarding permissible (and impermissible) treatment of those who flee from the police. Rather than teach the limitations on permissible lethal force established by Tennessee v. Garner, for example, too many police training protocols appear to be based, instead, on the SWAT Magazine-inspired “21-foot rule,” which too often appears to substitute for Constitution-based restraints on deadly force against unarmed citizens by law enforcement officers, and is too commonly referenced by officers who try to justify shooting unarmed black men at close range, in the recent tragic police killings detailed in this article.

It is imperative that reform of police practices and procedures across the country must incorporate a renewed emphasis on Constitution-based use-of-force police training. In particular, as long as officers of the peace are allowed to shoot at fleeing suspects to stop them from getting away or because they are too close and appear “threatening” to officers even when unarmed, their training has failed to adhere to constitutional protections that are critical for the protection and preservation of a just and civil society.

Keywords: police reform, police brutality, race, racial justice, criminal procedure, abuse of power, due process, constitutional law

Suggested Citation

Marcus, Nancy C., Out of Breath and Down to the Wire: A Call for Constitution-Focused Police Reform (October 6, 2015). Howard Law Journal, Fall 2015, Available at SSRN: https://ssrn.com/abstract=2670278

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