The death penalty on the streets: what the Eighth Amendment can teach about regulating police use of force.

• Author: Exum, Jelani Jefferson
• Position: Policing, Protesting and Perceptions: A Critical Examination of the Events in Ferguson

1. Introduction

   The use of force by police officers has traditionally been analyzed through the lens of Fourth Amendment reasonableness. (1) The Supreme Court has decided that the proper question regarding the excessiveness of police force is whether the police officer acted as a reasonable law enforcement officer. (2) When that police force is fatal--what this Article deems the death penalty on the streets--the legal question is the same, leaving us with an analysis that requires a heavy reliance on the officer's version of events and a host of disagreement on what constitutes appropriate police action. (3) Reasonable minds can, and do, disagree on what constitutes reasonable police action because the reasonableness standard is divorced from any notion of what procedures police ought to follow before turning to deadly force. The August

   9, 2014 killing of Michael Brown in Ferguson, Missouri, and countless unarmed others before and since him who have lost their lives at the hands of police, brings this unsatisfactory analysis to the forefront. (4) The lack of clarity in the use of force reasonableness standard often leads to reasonableness being the default legal conclusion in cases brought against police officers, leaving victims of deadly police force without justice.

   This Article offers punishment as another lens through which to view police force. The Supreme Court has consistently rejected arguments that the Eighth Amendment is the appropriate vehicle for dealing with excessive police force claims. (5) Flowever, reconceptualizing the use of deadly force by police officers as punishment provides a new understanding of the gravity of deadly police force and adds necessary substance to the reasonableness analysis. When police force is likened to punishment, the use of fatal force by police officers can be considered the administration of the death penalty on the streets, absent the procedural protections and focus on human dignity given in the criminal justice system through the Eighth Amendment. (6) When considered in the context of punishment, the reasonableness analysis can be transformed to incorporate the value of human dignity and focus on protections against fatal police force that ought to be in place to protect the lives of all individuals.

   This Article argues that the reasonableness standard applied to deadly police force must ask whether a police officer was able to, and did, use nonfatal force before turning to deadly force. It is with an eye to this more reasoned approach to reasonableness that this Article builds a case for incorporating Eighth Amendment values into the Fourth Amendment reasonableness analysis of excessive police force. Part II of this Article criticizes the traditional Fourth Amendment reasonableness analysis and argues that, rather than assessing how a reasonable officer would handle a situation, we can redefine the focus of the inquiry to the types of methods employed to avoid the loss of life. In Part II, the stories of Michael Brown and others are explored in order to show the unreasonableness of the current reasonableness standard for claims of excessive police force. Part III of the Article compares police force to punishment and explains that, by applying an Eighth Amendment "respect for human dignity" standard to analyze the use of fatal force by police officers, we can avoid some of the pitfalls of the current excessiveness analysis. As Part IV explains, the Supreme Court goes to great lengths to spare the lives of even our criminals. Part IV also discusses the protections given defendants in the death penalty context in order to show that the death penalty procedures developed by the Supreme Court are based upon its view that the Eighth Amendment requires a respect for human dignity, which is in stark contrast to the death penalty on the streets. When the government is permitted to take an individual's life, it must do so in a manner that respects that life. Finally, this Article concludes by positing that procedures and guidelines regarding non-fatal uses of force must be followed before an officer can reasonably take the life of an individual. In this way, the death penalty on the streets will be a form of punishment that is narrowly applied and respectful of the lives of all people, no matter their behavior.

2. THE UNREASONABLE REASONABLENESS ANALYSIS

   The Supreme Court has made it clear that claims of excessive police force will be analyzed under the Fourth Amendment's protection against unreasonable seizures. (7) This inattention to the actual consequences of deadly police force indicates the Supreme Court's lack of awareness of the true nature of fatal police force--that it is more akin to punishment than to a simple seizure. While it may be that police officers have seized a person when they use force against that person, (8) by limiting police force cases to the traditional Fourth Amendment analysis, the Supreme Court has left us with situations in which unarmed individuals have been killed by police officers with no finding of excessive force. A closer look at the reasonableness standard reveals its shortcomings.

   1. The Traditional Fourth Amendment Reasonable Force Standard

      The Supreme Court has acknowledged that "the two primary sources of constitutional protection against physically abusive governmental conduct" are the Fourth and Eighth Amendments. (9) However, in the 1989 case, Graham v. Connor, the Court explicitly held that "all claims that law enforcement officers have used excessive force--deadly or not--in the course of an arrest, investigatory stop, or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and its 'reasonableness' standard[.]" (10) Therefore, when a party claims excessive police force, determining the reasonableness of the police action will "be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." (11) The Court has elaborated that this reasonableness inquiry "is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." (12) Ultimately, then, the reasonableness of police force will turn on the point of view of the particular officers involved, judged against the actions of a "reasonable officer"--an officer who does not act with excessive force.

      Of course, a reasonable police officer does not use deadly force in every encounter with an unruly suspect. The National Institute of Justice explains police force options in this manner:

      Law enforcement officers should use only the amount of force necessary to mitigate an incident, make an arrest, or protect themselves or others from harm. The levels, or continuum, of force police use include basic verbal and physical restraint, less-lethal force, and lethal force. (13) Even with this array of options available to officers, the traditional Fourth Amendment reasonableness standard leaves open the possibility of the legal use of deadly force by police officers in certain situations. Five years before the Supreme Court decided Graham, it had already tackled the deadly force issue under a Fourth Amendment analysis. In Tennessee v. Garner, the Court considered "the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon." (14) In that case, two police officers were dispatched to investigate an ongoing home invasion. (15) One of the officers spotted the suspect fleeing across the backyard of the targeted home. (16) Although the officer was "reasonably sure" that the suspect, Edward Gamer, did not have a weapon, the officer shot Gamer in the back of the head as he began to climb over a fence. (17) The officer explained that he felt convinced that if he did not shoot Gamer, he would escape. (18) Gamer died at the hospital. (19) The Court, analyzing the claim of excessive force using the Fourth Amendment, held that deadly force "may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." (20) In this particular case, the Court determined that deadly force was unreasonable because the officer did not have probable cause to believe that the unarmed Gamer posed any danger to officers or the public. (21) The Court did not, however, condemn the use of deadly force altogether.

      In explaining its conclusion, the Garner Court made several observations about the use of deadly force by police officers. On the nature of deadly force, the Court explained:

      [Notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched. The suspect's fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. (22) Thus, the Court recognized the severity of deadly force and the narrow circumstances in which killing a suspect is reasonable. The Supreme Court, in Garner, also discussed the limited effectiveness of deadly force to accomplish criminal justice goals:

      [W]e are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. (23) Despite seemingly recognizing the gravity of deadly force, and the fact that killing a suspect robs that suspect and society of the opportunity to have the criminal justice system do its job, the Supreme Court, by...