Renaming Deadly Force

By Scott A. Harman-Heath

Three times a day in the United States, a police officer kills someone. On any given day, this person might be an active shooter, a hostage-taker, or a bomber. But on that same day police might also kill a motorist reaching for his license (Philando Castile), someone selling loose cigarettes (Eric Garner), someone who used a counterfeit bill at a grocery store (George Floyd), or someone fleeing a traffic ticket for a malfunctioning brake light (Walter Scott). Intuitively, these scenarios present radically different uses of deadly force, but the nomenclature we use for deadly force does not account for this—all police killings are simply “deadly force.” This Article suggests that this is a mistake that stunts both scholarship and discourse. Instead, this Article contends, police killings demand a new taxonomy, one that easily and intuitively distinguishes between different types of deadly force. This Article proposes a framework that distinguishes between police killings we intuitively understand to be problematic and those we are more willing to accept. It does so by proposing that deadly force be divided into three categories—preemptive, anticipatory, and reactive—according to the degree of speculation an officer relies on when they decide to use deadly force. Importantly, because this Article advances a descriptive as opposed to doctrinal theory, its proposal need not be adopted by courts to afford substantial benefits to scholars, officers, or litigants. Rather, this Article aims to aid scholars’, litigants’, and courts’ attempts to classify and explain the differences between police killings. Unlike the catch-all term “deadly force,” this Article’s framework recognizes and accounts for the dissimilarity of many police killings, which have nothing in common besides the end result.

Cornell Law Review Vol.106:1689