What is the caselaw regarding cops killing people?

bullet with police badge and kkk maskHere in the United States it feels like a week can’t go by without a white cop killing an unarmed black man. It’s a distressing situation made that much more overwhelming by all the complicated and unresolved social problems it brings front and center for all the bobbleheads to poke and prod and jabber about but do nothing to change.

I don’t think I’m capable of adequately understanding and addressing all of those issues. Hell, I know I’m not. However, one question I can at least scratch the surface of is the question of caselaw. I spent a recent Sunday quaffing coffee and Googling the shit out of terms like “officer-involved shooting”, “deadly force”, “excessive force” and “police brutality”, and now I am an expert on the subject.1

What I gleaned through my Cyberian wanderings is that the caselaw deals with three subjects: the criminality of the officer’s conduct (Did s/he commit murder/manslaughter?), the liability of the officer (Can the victim’s family sue him/her personally?), and the liability of the officer’s employer (Should the state/city/agency compensate the victim’s family?). In other words, we’re dealing with criminal law (Should the officer go to prison?) and civil law (Can the officer/police department be sued?).

I’ll relate what I found regarding all of these, but we’ll start by defining our terms. Next I’ll talk about the civil law. I’ll end with a discussion of the criminal caselaw.


Before we get to the meat of the subject, let’s get our nomenclature and definitions straight. Wikipedia–where all journeys of personal and social discovery begin–uses the term “police brutality.” The Wikipedia definition is a little wordy but boils down to “the abuse of authority by the unwarranted infliction of […] force by [law enforcement] personnel […] while performing their official duties.”

Of course, the Wikipedia definition is an all-purposes kind of definition, not a legal one. So what do lawyer folk call cops killing unarmed black men? Well, the U.S. Supreme Court seems fond of the term “excessive force” (which I edited out of Wikipedia’s definition because “unwarranted” and “excessive” seem redundant). For the purposes of this inquiry, let’s use the Court’s terminology. Excessive force caselaw, in the realm of civil suits, seems to involve three key terms: (1) the Fourth Amendment,  (2) excessive/lethal force, and (3) qualified immunity.

Civil law

The Fourth Amendment

The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

“Searches and seizures” refers not only to one’s personal property but also to one’s body. And, since the application of force is sometimes necessary to effect a seizure, especially of a human body, it is under this amendment that use of force doctrine falls. Some lower courts have tried to apply other amendments to excessive force cases, but the Supreme Court (in the opinions I read, at least) has rejected that reasoning.

Excessive force

So we know that “excessive force” is the legal term courts use for what we normal folk would call, simply, “white cops killing unarmed black men;” but how does the Supreme Court define the term? Justice Sotomayor writes that, when force is used to effect a seizure, “there must be a governmental interest not just in seizing a suspect, but in the level of force used to effectuate that seizure.” (Mullenix v. Luna, 577 U.S. ___, ___ (2015) (slip op., at 7)). In Tennessee v. Garner, 471 U. S. 1 (1985), the Court held that “deadly force is only permissible where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.”

So excessive force is anything beyond what is necessary to effect a particular seizure. And, when the force rises to a level that could be deadly, the officer must have reason to believe the subject is a serious threat to others. There’s more to it than that, but the qualified immunity discussion below covers the rest of it (as far as my limited knowledge goes anyway).

Qualified immunity

Under the 11th Amendment to the U.S. Constitution, the States are immune from suit in federal court (with some exceptions). Of course, you can sue the government but only with it’s permission. This is called sovereign immunity. This immunity is necessary for government to function; otherwise, it would spend so much time defending itself in court it would hardly have time or money for anything else.

It naturally follows that, if the government needs to be largely immune from lawsuits in order to function, its functionaries likewise require some level of immunity in order to do their jobs. After all, if you couldn’t sue the Bumfucknowhere Police Department, but you could sue every single officer in that department, it would pretty much have the same result, right?

The doctrine of qualified immunity shields public servants from lawsuits over things they did or didn’t do, while acting in their official capacity, so long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). In layman’s terms, the courts ask three questions in qualified immunity cases: (1) Was there a clearly established constitutional right, (2) was it violated, and (3) would a “reasonable” official know they were violating that right? If the answer to all 3 is “yes,” then you might actually succeed in suing a police officer in his/her individual capacity.

And, “what is a ‘clearly established right,'” you ask? Well, in Reichle v. Howards (566 U. S. ___, ___ (2012) (slip op., at 5)), the Roberts’ Court defined it as “one that is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates that right.'”

The Court warns that this question is not a general one. You can’t take a particular case and fit it neatly into some syllogism that will resolve the question for you. Rather, the Court asserts, “the dispositive question is ‘whether the violative nature of particular conduct is clearly established.'” Malley v. Briggs, 475 U. S. 335, 341 (1986) (quoted in Mullenix v. Luna, 577 U.S. ___, ___ (2015) (slip op., at 5)). The shitty thing is it’s really easy for a court to look at a particular case and say, “Gosh. Ya know, normally this would be a horrific, cold-blooded murder; but, in the context of this particular case, it seems pretty reasonable (or, as Sotomayor lamented in her 2015 Mullenix dissent, “reasonably reasonable” (Id. at 7).

You may have noticed the word “reasonable” pop up quite a bit. Well, if you have even passing familiarity with constitutional law, you know that the Court loves to apply “reasonable person” tests to everything, and such tests are a veritable rabbit hole cluster-fuck, so we will avoid that one for now. Suffice it to say that, in the context of deadly force cases, if you try to sue an officer, and a court grants your petition, chances are a higher court will overturn that decision. It is really hard to successfully sue a police officer. That said, plenty of folks have had better luck suing police forces; because, in the context of highly publicized cases, it is often cheaper and more expedient for a local government to settle a case than to fight it. But, if they did fight it, they would probably win.

Suing a law enforcement officer’s employer

Suing the employer, as best as I can tell, follows pretty much the same logic as suing the officer. However, it’s important to note that, at least according to John Midgley, you can’t just sue the employer because “shit rolls up hill.” To sue a police department over an officer’s misconduct, you would need to show that it contributed in some way to that misconduct. Ultimately, as best as I can tell, people don’t usually sue the actual police department; rather, they will sue specific people within that department sometimes including the head of that department. And they generally sue them in their individual capacity as opposed to their official capacity.

Criminal law

As far as federal courts are concerned, criminal law regarding excessive force is much the same as civil law. “[T]he reasonableness of a particular use of force must be viewed from the perspective of a reasonable officer at the scene.” Graham v. Connor, 490 U.S. 396, 397 (1989). That’s right, we’re right back where we started: at that “reasonable person” cluster-fuck I really don’t wanna talk about.

Things get exceedingly murky here. You see, in lawsuits against government bodies or officials, we’re dealing pretty much exclusively with federal law (Actually, you often can choose state court as your venue if you just really want to; but, as T.I. would say, why you wanna go and do that?). When it comes to prosecuting and convicting an officer of murdering someone, on the other hand, we’re dealing instead with state law–unless the defendant is a federal law enforcement officer, and how often do those cases make it to court? Since each state’s laws are different, there is no one standard for determining if a police officer committed murder under the guise of “reasonable force.”

That said, states, for the most part, seem to have framed their use of force and deadly force laws around the federal caselaw we’ve already gone over–probably because they’re more interested in not losing federal lawsuits than they are in convicting and imprisoning rogue cops. So, generally, the same questions that apply in civil cases apply here: Were the officer’s actions meant to achieve a reasonable governmental interest, did the officer believe the level of force exerted was necessary to achieve that interest, and was that belief itself reasonable? (See, e.g., State v. Smith, 73 Conn. App. 173, cert den. 262 Conn. 923 (2002); Florida Statue 776.05).

Okay, okay, a brief note on reasonable person tests

I said I wouldn’t talk about this, but I feel like I have to say something. The Supreme Court likes to use reasonable person tests. They phrase them all kinds of ways. Some are long. Some are short. Some have one prong. Some have multiple prongs. But they all pretty much boil down to: Might a rational person, in the same situation, do what Petitioner-So-And-So or Respondent-Such-And-Such did?

The reason these tests are a cluster fuck is because courts are often divided on the answer. In the most recent case cited above (Mullenix v. Luna), eight justices said a reasonable person might have done what the cop did in that case. One justice, Sotomayor, disagreed. Well, Sotomayor seems like a pretty reasonable person to me–I mean, she didn’t scrawl her dissent in shit (à la Geoffrey Rush in Quills) on the back of a Xeroxed copy of the Bill of Rights or anything. And there are tons of cases where the Court applied a reasonable person test and was way more divided on the result than here.

My point is that, in many cases, reasonable people will disagree. In all likelihood, two reasonable people faced with the same situation will act in two very different ways. Hell, the same person might act two different ways in identical situations at two different times. Reasonable people do all kinds of inexplicable shit. Reasonable people are not always reasonable. And, ultimately, how reasonable are any of us really?

Helpful links

1. I have no fucking idea what I’m talking about. I’m not a lawyer.

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