WASHINGTON – Long before police brutality emerged as a dominant public issue in the United States, Cynthia Lee, a George Washington University professor and an expert on race and self-defense, devoted much of her research to deadly police shootings of unarmed Black men and women.
In a 2004 study, she concluded that stereotypes about African Americans, often working at a subconscious level, influenced a police officer’s split-second decision about whether to use deadly force, accounting for the disproportionately large number of Black victims in police shootings.
In 2018, she authored a groundbreaking law journal article on reforming laws governing police use of deadly force. Most states, she learned, allowed police officers to use deadly force as long as they had a “reasonable belief” in the need for such action.
This standard, however, allowed juries to believe that an officer’s use of force was justified even if it wasn’t necessary or proportional. Lee’s solution: changing the law to make it equally important to assess whether an officer’s actions leading up to a shooting were reasonable, and requiring the use of force to be necessary, proportionate and based on an immediate need.
At the time she wrote the article, Lee thought the chances of states adopting her model were “fairly slim.” But her work began to attract attention in the wake of incidents in which police officers killed African Americans while attempting to take them into custody, including the death of George Floyd in Minneapolis nearly a year ago, which touched off international protests and a push for police reform.
In the year since Floyd’s death, one city and two states — Washington, D.C., Virginia and Connecticut — have used Lee’s model to adopt stringent use of deadly force statutes. The measures were adopted as part of comprehensive police reform legislation.
In Delaware, members of the Law Enforcement Accountability Task Force have also expressed interest in her model, Lee said.
While Washington, Virginia and Connecticut account for only a handful of the more than 1,000 deadly police shootings a year in the U.S., reform advocates hope that these changes will help rein in police use of excessive force.
The controversy over police use of force is front and center on Capitol Hill, where Senate Democrats and Republicans are fighting over House-passed legislation that would end qualified immunity, the legal doctrine that protects individual police officers from lawsuits for misconduct. In March, the House approved the George Floyd Justice in Policing Act that would, among other things, ban the use of chokeholds, strengthen federal civil rights laws and end qualified immunity.
Lee is hoping that her model statute finds its way into the national debate.
“It’s the kind of change we need because we need to make sure the police officers are treating people fairly and with respect and that people are not getting unnecessarily hurt or killed by the use of force,” said Democratic Virginia state Senator John Bell, an early supporter of Lee’s proposal.
Criticism of model statute
Critics say the changes force juries to second-guess police officers’ split-second decisions on the use of deadly force, whether to fire a gun or wrestle a suspect to the ground or subdue him or her in some other life-threatening hold.
“They changed the law to say, ‘What would a civilian who looks at the use of force say about whether it was reasonable or not,'” said John Krupinsky, president of the Connecticut State Fraternal Order of Police.
Barry Friedman, a New York University law professor who has argued that a dearth of laws has left police to police themselves, praised Lee’s proposed reform.
“We need to pass statutes to tell the police specifically how it is that they should police, and her statute is an effort to do that,” he said.
While other states such as California, Colorado and Maryland, spurred by the Black Lives Matter protest movement, have enacted strict police use-of-force standards in the past couple of years, none stemmed from the work of Lee.
“Of course, you always hope that your research will have real-world impact,” Lee told VOA. “I wanted to inform discussions about policing, but I never imagined that my work would actually become law in any state, let alone two states and the District of Columbia.”
Given that juries largely remain sympathetic to police officers, Lee’s model statute is unlikely to lead to a sharp increase in convictions. Lee said it could have a deterrent effect, however, encouraging police officers to “act with more care” before using deadly force.
But changing police culture is likely to take time. The Washington statute has yet to be made permanent. The Virginia legislation went into effect March 1, while the Connecticut statute doesn’t take effect until next year.
Deadly force standard
In the United States, the use of deadly force is governed both by a landmark 1989 Supreme Court decision known as Graham v. Connor and by individual state laws. The Supreme Court ruling requires that all claims of excessive force against a police officer be judged from the perspective of “an objectively reasonable officer.”
“It’s not your judgment or my judgment. It’s ‘how would a reasonably objective officer judge the situation,'” explained David Harris, a University of Pittsburgh law professor.
For decades now, the high court ruling has served as the default standard for police use of deadly force in the country, Harris said. Every police officer in America is trained on its legal significance. When an officer is sued over excessive force in a civil case, it is Graham v. Connor that applies. But when an officer involved in a deadly shooting faces criminal charges, state criminal statutes take control, according to Lee.
At the time Lee conducted research for her model statute, only nine states and the District of Columbia did not have use of deadly force statues. Most of the other states focused solely on the reasonableness of an officer’s belief in the need to use deadly force. Consequently, instead of assessing an officer’s conduct, juries probe whether an officer’s fear of the suspect is reasonable: Was the suspect holding a gun? Was he or she resisting arrest?
“I felt that the real focus should be on the actions of the officer,” Lee said, “because the officer is the one on trial.”
To ensure an officer is held accountable, Lee’s model statute requires that juries consider whether an officer acted reasonably before using deadly force. But what makes an officer’s actions reasonable? Lee offers a couple of factors for a jury to consider.
First, the model instructs the jury to consider whether the officer used any de-escalation measures, such as trying to calm the suspect or using less-lethal force.
Second, it requires that jurors consider whether the officer’s conduct increased the risk of a deadly confrontation. Importantly, the statute allows the jury to consider the officer’s actions “before the moment in time” when the officer is fearing for his life.
Borrowing from self-defense law in civilian homicide cases, Lee’s model legislation allows the jury to find an officer guilty of manslaughter if the officer’s belief in the need to use force was “honest but unreasonable” or if the officer’s belief was reasonable but actions were unreasonable.
Applying the model
To demonstrate how her model could alter the outcome of a deadly shooting case, Lee applied it to the 2014 police killing of Tamir Rice. Rice, a 12-year-old African American boy, had been carrying a replica toy gun when a white police officer arrived on the scene and almost immediately shot the youth. Two experts hired by Cleveland prosecutors applied the Supreme Court standard and concluded that the use of force in the case was justified.
But Lee said that a jury relying on her model statue could reach a different conclusion. The jury would note that by driving too closely to Rice, the officers put themselves in a vulnerable position, increasing the risk of using deadly force to protect themselves. Had they parked their car further away from the scene, they could have talked to the boy and convinced him to drop his gun, instead of “immediately firing on him.”
Lee’s model is hardly a recipe for radical change. To critics on the left, it doesn’t go far enough. Still, it took nothing short of Floyd’s death beneath the knee of former Minneapolis police officer Derek Chauvin — and an enthusiastic outreach effort by Lee’s students — for legislators to take a close look at her model statute.
In January 2020, a former student, then working for District of Columbia Councilmember Kenyan McDuffie, shared Lee’s model statute with her boss. But it wasn’t until after Floyd’s death that Lee learned that McDuffie had incorporated her measure into a use-of-force bill. Within days, the council unanimously adopted the statute as part of emergency police and justice reform legislation.
“I was floored when I found out that D.C. had enacted police reform legislation that included my model statute,” Lee said.
But the council took her statute one step further, she said. It held that police officers may use deadly force only after “all other options have been exhausted.”
“This was a great addition to my model statute,” Lee said.
Gregg Pemberton, chairman of the D.C. Police Union, said many of the provisions in the district legislation had been enacted by the Metropolitan Police Department years ago.
“The MPD does not have issues with racial profiling or police brutality,” Pemberton said.
Less than a month after the District of Columbia adopted her model statute, an official in Connecticut Governor Ned Lamont’s office emailed Lee to inform her about proposed changes to the state’s use of deadly force statute based on her model legislation.
“I was surprised and pleased to learn that Connecticut was looking into adopting key provisions from my model statute,” Lee said.
In late July, Lamont, a Democrat, signed the bill into law, with an effective date of April 1. Shortly before the bill was to take effect, however, Lamont, under pressure from law enforcement groups, signed a bill delaying the effective date until January 1, 2022.
Around the time Connecticut lawmakers were debating changing the state’s use-of-force standards last year, Virginia Governor Ralph Northam, a Democrat, called a special session of the state general assembly to meet on August 18 to pass criminal justice and policing reform.
At that time Virginia was one of nine states that didn’t have a use-of-force statute. So Lee drafted a model statute for Virginia, including the District of Columbia requirement that an officer exhaust all other options before using deadly force. She had her research assistant send the document to about a dozen lawmakers.
In October, Northam signed into law police reform legislation sponsored by state Senator Mamie Locke. It went into effect March 1. Unlike in Washington D.C. and Connecticut, law enforcement agencies were relatively open to the proposed changes.
Dana Schrad, executive director of the Virginia Association of Chiefs of Police, said the group worked with state lawmakers “to make sure that there was a standard in there that allowed a law enforcement officer to protect his or her own life.”