Franklin Zimring on imposing “don’t shoot” rules to improve policing

By Franklin Zimring

THE POLICE kill around three people each day in America. Yet almost half of these deaths are unnecessary, because the lives of officers or citizens are not in mortal danger. African-American men are victims of police killings at twice the rate of other demographic groups, relative to their proportion of the population. And here’s the rub: most of these unnecessary killings do not actually fall foul of the police’s ambiguous rules on the use of force.

To fix the problem, it is essential to design policies that give police departments strong incentives to avoid bloodshed when officers’ lives are not at risk. The best way to protect African-Americans is to enact policies that protect everyone.

The federal government should resume its investigations into police departments that fail to control the use of deadly force. These investigations should be systematically used to enter into “consent decrees”—legal settlements that lay out reforms that police departments agree to undertake under court-supervised, independent monitoring. Although in theory this power already exists, it was used only occasionally under President Barack Obama and has not been used at all under President Donald Trump.

Yet a problem is with the law itself. Criminal convictions can only occur when officers willfully violate the rules and procedures of their department—in other words, when the system doesn’t permit lethal force. However the majority of unnecessary killings by police are not clearly forbidden by the cloudy standards that police departments use. The system—as well as the shooter—causes the death.

To save lives, we need to find ways to impose liability when both the standards of the police department and the officers on the street share the blame. Substantial monetary damages paid by police departments provide the most effective disincentives. The doctrine of “qualified immunity”—which lets police evade criminal and civil penalties—should be replaced by legislation that makes police departments liable for damages in cases where their standards result in unnecessary or excessive use of deadly force.

More effective prosecution for wrongful shootings by officers is important because impunity in these cases destroys citizens’ faith in the legal process. Financial incentives are needed too. If local governments regularly lose millions of dollars in legal actions because they tolerate excessive force, that should spur politicians and the public to apply pressure on police administrators to change their policies, and thereby save lives.

Can local police departments really reduce unnecessary killings if the police chiefs make it a priority? You bet they can.

A series of what I call “don’t shoot” rules can remove the supposed justification for lethal force in whole categories of encounters between citizens and the police. Attacks with weapons that don’t threaten officers’ lives (such as knives and blunt objects), as well as from “personal force” (like punches or shoves), should be explicitly excluded as a justification for deadly force by police in all but highly exceptional cases. Fleeing suspects constitute another class of cases that merit “don’t shoot” treatment.

The reason behind “don’t shoot” rules is that firearms account for 98% of all fatal assaults against the police, according to FBI statistics from 2008-13. No fatal injuries were caused by knives visible to the officer or by blunt objects. In nearly 250,000 assaults, only three officers died after the suspect used only personal force. But these low-danger attacks result in hundreds of killings each year by cops.

Once clear “don’t shoot” rules are in force, most officers will obey them to avoid administrative penalties and departmental discipline. And when clear rules are ignored by officers, their wilful failure can be the basis for their criminal liability. To be sure, police unions and police chiefs would resist restrictions on lethal force imposed by outsiders. But police chiefs have been able to tighten practices within their departments, and places like New York City have been able to maintain low rates of shooting without provoking much hostility from within the ranks.

When the police have a legitimate need to use firearms, another set of use-of-force policies are required to stop officers from firing more than what is necessary to protect lives. Although national and state statistics do not exist, some police departments compile data on the number of shots fired. They show that officers fire multiple shots in the majority of cases when they use their firearms, and that this leads to more deaths.

I analysed “shots fired” data from the Chicago Police Department from 2007 to 2013. If the police caused a single wound, the civilian died in 21% of cases—a total of 19 deaths in 91 single-wound shootings. But in most cases, the police inflicted more than just one wound. This tendency to keep shooting and these extra wounds increased the likelihood the citizen would die: one-third of the time with two wounds to more than half the time after three or four wounds. After five wounds, the person only lives a quarter of the time.

Are multiple gunshots necessary? The question has never been studied. But police officers are instructed to make sure the suspect is subdued—hence, there may be a hail of bullets, even though in the majority of cases no shots are fired at the police. Imposing a requirement to “stop shooting” when suspects flee, are injured or surrender could substantially reduce civilian deaths.

Practical policies like these can influence when officers use deadly force. Moreover there are examples of police departments that have improved their practices, which shows a positive way forward.

New York City had very high rates of civilian fatalities in the 1970s but in the period of 2009-12 that we studied, it had dropped to just 1.36 per million, which is very low for a major city. The reason is partly a fall in crime, but it’s also attributed to better training and shooting protocols. Police killings vary widely across big cities: between 2009 and 2012 they were over six times more frequent in some places than in others. If New York City’s improvement were replicated nationwide, the national death toll from police killings might drop by more than half.

Police departments have the power to save countless lives without fundamental changes in their operational focus or officer safety. Other changes in training, attitudes and priorities can build stronger relations between the police and the communities they serve. But preventing unnecessary killings is not only sound policy and a moral imperative—it is achievable.
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Franklin E. Zimring is a law professor at the University of California, Berkeley. His most recent book is “When Police Kill” (Harvard University Press, 2017). He is the winner of the Stockholm Prize in Criminology in 2020 with Philip Cook of Duke University.

This guest commentary is part of an occasional series on “Policing in America”. More articles can be found at Economist.com/by-invitation