Cynthia Lee
89 Geo. Wash. L. Rev. 1362
When a police officer’s use of deadly force kills or seriously injures a civilian, that officer may face civil liability or criminal prosecution. In both civil and criminal cases, a critical question that the jury must decide is whether the officer’s use of force was reasonable or excessive. As a general matter, the jury will be advised that it should consider all the relevant facts and circumstances—the totality of the circumstances—to answer this question.
An officer’s decisions and conduct prior to that officer’s use of deadly force can create jeopardy for the civilian and the officer, increasing the risk of an officer-civilian encounter turning into a deadly confrontation. Such conduct is part of the totality of the circumstances. Yet in cases involving officer-created jeopardy, many trial courts restrict the jury to considering only the facts and circumstances known to the officer at the moment the officer chose to use deadly force, precluding consideration of the officer’s antecedent conduct that may have increased the risk of a deadly confrontation. The lower courts are split over whether a narrow or a broad time frame is required, and the U.S. Supreme Court has not explicitly taken a position on this issue. This Article argues that courts overseeing criminal prosecutions of police officers should broaden the time frame and allow juries assessing the reasonableness of the officer’s use of deadly force to consider pre-shooting conduct of the officer that created or increased the risk of a deadly confrontation. Broadening the time frame is an important way to encourage law enforcement officers to take the steps needed to prevent police-civilian encounters from ending in death or serious bodily injury.
