‘All or nothing’ in the prosecution of police shootings

Police officers who kill citizens under questionable circumstances are rarely convicted, but that probably has more to do with bad law than with the prejudices of prosecutors or juries. 

Currently pending are the investigation and possible prosecution of a growing list of police killings, including the deaths of George Floyd, Rayshard Brooks, Bennie Branch, Nicholas Walker, and a re-examination of the 2007 case of Gregori Jackson. There has been a long history of acquittals in such cases, which often provoke civil unrest. Are we headed for several new rounds of rioting? Clashes with police broke out in Salt Lake City on July 9 when two police officers were cleared of wrongdoing in a May shooting death.

According to Bowling Green criminal justice professor Philip Stinson, an authority in the field, since 2005, out of 13,000 deadly police shootings, 106 officers have been charged with homicide. Only four have been convicted of murder. (Twenty-five officers are still awaiting trial.)

Some people will chalk up the lack of homicide convictions to what they see as the hopelessly racist nature of the criminal justice system. On the other side, some people think the same facts confirm that it is only media demagoguery that distorts public views about police and police shootings, and that a careful review of the facts by a thoughtful jury reveals the truth that the vast bulk of police shootings involve honest officers doing their best in a difficult situation thrust upon them by their job.

But an examination of the legal rules suggests that the high acquittal rate of police officers in questionable situations is more a product of bad law than anything else.

When Officer Derek Chauvin kept his knee on George Floyd’s neck for almost nine minutes, despite repeated pleas from the handcuffed man that he couldn’t breathe, people are inclined to think that Chauvin must have known that his conduct was both life-threatening and unjustified. 

But a more common case is one where the victim points a toy gun or a starter pistol or a Taser at an officer or another person, and in a split second the officer must decide whether there is a serious threat that justifies shooting. Or perhaps the officer has been told that a suspect has a gun and the fleeing suspect pulls an object from his pocket as he turns. Is it a handgun or a cell phone? 

If, in fact, there is no gun, the officer’s liability for homicide ought to depend upon what the officer knew or should have known at the time he fired the shot. He might honestly have believed the suspect was presenting a real danger, but also aware of a substantial risk the suspect might not be — this is what the law calls “recklessness.” Or, he might be convinced of the danger but a reasonable person in his situation would have been aware of a risk that there was no such danger — what the law calls “negligence.”

Most American jurisdictions treat cases of recklessness or negligence as identical to the George Floyd case. And most treat these cases as morally equivalent to an intentional killing, such as a planned murder.

Under what has been called the “all-or-nothing” approach, only a completely reasonable mistake gives a police officer a complete defense to homicide. Thus, even the officer who makes only a negligent mistake in judging the circumstances — it never occurred to him that the force was unjustified — is denied a defense and therefore is liable for murder.

The American Law Institute’s Model Penal Code, which served as the basis for three-quarters of state criminal codes, proposed instead a “sliding-scale” approach, in which the officer who makes a negligent mistake is criminally liable for negligent homicide, not murder, and the officer who makes a reckless mistake is liable for reckless homicide (manslaughter). The National Commission for Reform of Federal Criminal Laws proposed this same approach. But most American jurisdictions rejected the sliding-scale approach in favor of the all-or-nothing approach.

The major problem with the all-or-nothing approach is that it gives juries an impossible choice. In the common case where an officer is not out to kill a citizen but instead makes a flawed choice in a difficult situation — where he makes a reckless or negligent mistake — the options of reckless or negligent homicide are not available to jurors. The jury is given only two bad choices. They can either treat the tragically mistaken officer as morally equivalent to an intentional murderer, or they can acquit.

Given these two bad options, it is no surprise that juries commonly pick acquittal over murder. The acquittal only takes one juror refusing to treat the officer as a murderer. And prosecutors, in deciding which cases to bring before a jury, must take this likelihood into account.

Police unions might well have joined in supporting the all-or-nothing approach and opposing the sliding-scale approach when the issue was debated during the criminal law recodification movement in the 1960s through 1980s. Back then they might well have correctly anticipated that jurors would acquit, even in cases of officer recklessness or negligence, if the only alternative is to convict for murder.

But times have changed, and police unions ought to recalculate the risks. Bombarded with an unceasing media message that police are racist, the reluctance of juries to over-punish officers who err may be fading. 

Justice for victims and just punishment for officers is best promoted by the Model Penal Code’s sliding-scale approach, rather than the now standard all-or-nothing approach.

Paul H. Robinson is the Colin S. Diver Professor of Law at the University of Pennsylvania and most recently the co-author of the general audience book, “Mapping American Criminal Law: Variations Across the 50 States.”