When Can a Police Officer Use Deadly Force
By: Donald V. Watkins
Copyrighted and Published on September 13, 2020
In my 47-year legal career, I have prosecuted police officers who used deadly force against citizens. I have also defended both black and white police officers who used deadly force against black criminal suspects. The politicization of the Jacob Blake shooting last month in Kenosha, Wisconsin makes it necessary to explain the law on when an officer can use deadly force to effectuate an arrest or bring an end to a violent episode.
As reported, the police officer in the Jacob Blake case shot Blake seven times in the back. No one is claiming that Blake had a knife, or dangerous weapon in his hand and was facing the officer in a threatening manner when he was shot.
Supporters of the police officer claim that Blake deserved to be shot seven times in the back in front of his three children, who were in his car because (a) Blake was going to his car to retrieve a knife that was inside, (b) Blake had an arrest warrant outstanding for sexual assault, (c) Blake had been tased and kept moving toward his car and (d) the shooter was trying to arrest Blake.
Prior to 1982, a police officer could shoot a “fleeing felon” in the back if he/she knew the suspect was a felon and the suspect was fleeing the scene or otherwise evading his/her arrest. Starting in 1982, “Fleeing Felon” statutes were declared unconstitutional around the nation.
Once “Fleeing Felon” statutes were struck down, a police officer could use deadly force against a suspect only if it was necessary to prevent an imminent threat of harm to the officer’s life or that of another innocent person. Furthermore, a police shooting of an unarmed suspect in the back has not been condoned in America in over 45 years.
Unless Jacob Blake turned toward the police shooter with a weapon in his hand, the shooting was unjustified under existing statutes and case law. Whether Blake had outstanding warrants, or not, is immaterial in determining the question of excessive force. Even if tasing proved to be ineffective, deadly force is still not authorized in the absence of a weapon of some type in Blake’s hand.
Blake’s conduct in walking toward his car could be considered “fleeing” if the officer was attempting to arrest him. However, a police officer cannot shoot a suspect just because he/she is fleeing the scene of a crime.
The video of the Blake shooting will be helpful in determining whether to criminally charge the police shooter. His body-cam video will also show whether the officer was facing an imminent threat of danger when he pumped 7 bullets into Blake’s back. Fortunately, Blake survived the shooting and can give his version of the events that transpired.
The officer’s police department employee file will contain a wealth of information that is pertinent to this case. It will detail the officer’s training and history of prior excessive force complaints or lack thereof.
This will not be a hard case to sort out. The most troubling aspect of this case is why the officer felt compelled to pump seven bullets into Blake’s body at close range. That fact, alone, suggests the officer intended to kill Blake.
I predict that this officer will be indicted for the attempted murder of Jacob Blake. If not, all hell will break loose in Kenosha, Wisconsin.