When will the Supreme Court hold police responsible for lethal use of force?

The Hill

5 days ago

Last year, 1,173 Americans were shot to death by police. That is an average of more than three every day.
Police use of lethal force was greater last year than at any point in the last decade. So far this year, more than 425 people have been killed by law enforcement officers.
On May 15, the Supreme Court made a decision that goes part way toward helping reduce those numbers, and holds police accountable when they take someone's life. But it stopped short of doing what needs to be done.
Growth in the police use of lethal force in the U.S. has been steady for many years, despite judicial efforts to clarify when it is legal and to restrict it. Ten years ago, 950 were shot and killed; five years ago, that number had risen to just over a thousand.
And it has increased every year since. Moreover, the largest number of police shootings have involved an unarmed suspect.
Yet in 98.2 percent of killings by police from 2013-2024, no one was 'charged with a crime.'
There is also a clear racial dimension to the police use of lethal force. Blacks and Hispanics are shot at a disproportionate rate.
Scholars suggest that these figures result from a combination of implicit bias and a pervasive 'warrior culture' among police officers that leads them to overreact to anything that seems to challenge their authority.
And most victims of police shootings are young and male.
One of them was a 15-year-old Black teenager named Edward Garner, who was shot and killed by a Memphis police officer in October 1974. Garner had broken into a house but was 'unarmed and fleeing on foot when a police officer shot him in the back of the head.'
The policeman who shot Garner did not think that the fleeing suspect was armed. But at the time, that made no difference. Tennessee law allowed police to 'use all the necessary means to effect the arrest' of suspects who flee, whether they were armed or not.
In 1985, in the first of its efforts to restrict police use of lethal force, the Supreme Court struck down that law. Justice Byron White, writing for the majority, said, 'Notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him.'
He explained that lethal force should only be used when 'the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.'
But as we have already noted, the court's effort to clamp down on police use of deadly force did not stem the tide of such killings. Four years after its Garner ruling, the court revisited it, holding that claims the police used excessive force would be judged 'based on how a reasonable police officer would have handled the same situation.'
In the case decided earlier this month, a Houston policeman shot and killed a 24-year-old Black man, Ashtian Barnes, at 2:45 in the afternoon. The officer stopped him because he was driving a car whose license plate number matched one with outstanding toll violations.
Things got out of hand when Barnes opened the car door but refused to get out. A few minutes later, he started to drive away with the driver's door still open. Instead of letting him go and calling for assistance, the officer jumped onto the doorsill of the moving car and fired two shots that killed the driver.
The court ruled that when the police use lethal force in a traffic stop, judges should examine the totality of circumstances, including 'the reasons for the stop, or earlier conduct of, and interactions between, the suspect and the officer,' not just what happened 'at the moment of threat that resulted in [his] use of deadly force.'
That is an important step forward. But the court did not go far enough.
It did not speak on what happens when police do things that escalate the situation, like what the officer did in the Barnes case. In ordinary cases, the accused cannot claim homicide is justifiable if they behave recklessly or create the danger to which they then respond.
That same rule should apply when the police use lethal force. The Supreme Court refused to apply it in the Barnes case. That was a serious mistake.
The court's failure means that people will continue to die needlessly at the hands of the police — at least until the court makes clear that, as Justice White put it, it is not 'better that … felony suspects die than that they escape.'
Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College.