Cynthia Lee's Written Testimony in Support of Maryland House Bill 166

11 Pages Posted: 30 Mar 2020

See all articles by Cynthia Lee

Cynthia Lee

George Washington University Law School

Date Written: March 2, 2020

Abstract

In this paper, Cynthia Lee provides written testimony in support of Maryland House Bill 166, a police use of force bill that takes the existing standard established in Graham v. Connor and improves upon that standard by requiring the finder of fact assessing the reasonableness of an officer’s use of deadly force to consider whether the officer engaged in de-escalation measures and whether the officer’s antecedent (pre-seizure) conduct increased the risk of a deadly confrontation. These are not the only factors a jury need consider. The jury may consider any and all relevant circumstances that bear on the reasonableness of the officer’s use of deadly force.

In Graham v. Connor, The Supreme Court held that all civilian claims of excessive force by a law enforcement officer must be analyzed for reasonableness under the Fourth Amendment. The Court specified that in assessing reasonableness, courts should balance the individual’s interests against the governmental interests and pay careful attention to the facts and circumstances of the case. The Court explained that “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the twenty-twenty vision of hindsight.” The Courtalso explained that an officer does not have to be correct in his assessment of the need to use force. An officer can be mistaken as long as his mistake was reasonable.

HB 166 takes the existing standard established in Graham v. Connor and improves upon it by requiring the jury to consider whether the officer engaged in de-escalation measures. De-escalation measures include but are not limited to taking cover, waiting for back up, trying to calm the suspect, keeping a safe distance from the suspect, and trying to use less lethal force before using deadly force, if feasible. HB 166 also requires the jury to consider whether the officer’s antecedent conduct increased the risk of a deadly confrontation. An example of an officer’s antecedent conduct increasing the risk of a deadly confrontation is an officer who jumps in front of a speeding vehicle when it is 1000 yards away in an attempt to stop it. If the driver continues to drive and the officer doesn’t move out of the way but instead shoots and kills the driver, whether we look solely at the moments just before the shooting or broaden the time frame and consider the officer’s antecedent conduct makes a huge difference. If we focus just on the moments prior to the use of deadly force, the officer’s claim of justifiable force may appear reasonable since at that moment, he was facing an imminent threat of death or serious bodily injury. If, however, we step back and broaden the time frame, we can see that the officer jumped in front of the vehicle, unnecessarily increasing the risk of a deadly confrontation, and his actions do not appear so reasonable any more.

The lower courts are split over whether the jury can consider whether the officer tried to engage less lethal types of force prior to using deadly force. They are also split over whether the jury can consider an officer’s pre-seizure or antecedent conduct that increased the risk of a deadly confrontation. In the absence of legislation, state courts can disallow the jury from considering these highly relevant factors. The Maryland courts have disallowed the jury from considering these factors, taking the position that these factors are irrelevant to whether an officer’s use of deadly force was reasonable. The Maryland legislature can and should make clear that jurors in officer-involved shooting cases may consider whether the officer engaged in de-escalation measures, including attempting to use less lethal types of force before using deadly force, and whether the officer’s antecedent conduct increased the risk of a deadly confrontation.

Failure to engage in de-escalation will not necessarily mean the officer acted unreasonably, but under HB 166, is a factor that the jury must weigh in the totality of the circumstances when assessing the reasonableness of an officer’s use of deadly force. Similarly, just because an officer did something or failed to action that may have increased the risk of a deadly confrontation does not necessarily mean the officer acted unreasonably as a whole, but the jury must consider this type of conduct when assessing the overall reasonableness of the officer’s use of deadly force. It is hoped that requiring consideration of these two factors by the trier of fact in officer-involved shooting cases will provide a better incentive for police officers to act with more care prior to using deadly force.

Keywords: police, justifiable force, police use of force, deadly force, self defense, defense of others, legislation

Suggested Citation

Lee, Cynthia, Cynthia Lee's Written Testimony in Support of Maryland House Bill 166 (March 2, 2020). GWU Legal Studies Research Paper No. 2020-13, GWU Law School Public Law Research Paper No. 2020-13, Available at SSRN: https://ssrn.com/abstract=3561568

Cynthia Lee (Contact Author)

George Washington University Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
(202) 994-4768 (Phone)

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