Law Professor Helps Change Laws Governing Police Use of Deadly Force
Long before police brutality emerged as a dominant public issue in the United States, Cynthia Lee, a George Washington University professor and an expert on race and self-defense, devoted much of her research to deadly police shootings of unarmed Black men and women. In a People hold up signs, including one with an image of George Floyd, outside the courthouse in Minneapolis, Minnesota, April 20, 2021, after former Minneapolis police officer Derek Chauvin was found guilty in the death of Floyd.In Delaware, members of the Law Enforcement Accountability Task Force have also expressed interest in her model, Lee said. While Washington, Virginia and Connecticut account for only a handful of the more than 1,000 deadly police shootings a year in the U.S., reform advocates hope that these changes will help rein in police use of excessive force. The controversy over police use of force is front and center on Capitol Hill, where Senate Democrats and Republicans are fighting over House-passed legislation that would end qualified immunity, the legal doctrine that protects individual police officers from lawsuits for misconduct. In March, the House approved the George Floyd Justice in Policing Act that would, among other things, ban the use of chokeholds, strengthen federal civil rights laws and end qualified immunity. Lee is hoping that her model statute finds its way into the national debate. “It’s the kind of change we need because we need to make sure the police officers are treating people fairly and with respect and that people are not getting unnecessarily hurt or killed by the use of force,” said Democratic Virginia state Senator John Bell, an early supporter of Lee’s proposal. Criticism of model statute Critics say the changes force juries to second-guess police officers’ split-second decisions on the use of deadly force, whether to fire a gun or wrestle a suspect to the ground or subdue him or her in some other life-threatening hold. “They changed the law to say, ‘What would a civilian who looks at the use of force say about whether it was reasonable or not,'” said John Krupinsky, president of the Connecticut State Fraternal Order of Police. Barry Friedman, a New York University law professor who has argued that a dearth of laws has left police to police themselves, praised Lee’s proposed reform. “We need to pass statutes to tell the police specifically how it is that they should police, and her statute is an effort to do that,” he said. While other states such as California, Colorado and Maryland, spurred by the Black Lives Matter protest movement, have enacted strict police use-of-force standards in the past couple of years, none stemmed from the work of Lee. “Of course, you always hope that your research will have real-world impact,” Lee told VOA. “I wanted to inform discussions about policing, but I never imagined that my work would actually become law in any state, let alone two states and the District of Columbia.” Given that juries largely remain sympathetic to police officers, Lee’s model statute is unlikely to lead to a sharp increase in convictions. Lee said it could have a deterrent effect, however, encouraging police officers to “act with more care” before using deadly force. But changing police culture is likely to take time. The Washington statute has yet to be made permanent. The Virginia legislation went into effect March 1, while the Connecticut statute doesn’t take effect until next year. Demonstrators blocking Public Square in Cleveland during a protest over the police shooting of 12-year-old Tamir Rice, Nov. 25, 2014.But Lee said that a jury relying on her model statue could reach a different conclusion. The jury would note that by driving too closely to Rice, the officers put themselves in a vulnerable position, increasing the risk of using deadly force to protect themselves. Had they parked their car further away from the scene, they could have talked to the boy and convinced him to drop his gun, instead of “immediately firing on him.” Lee’s model is hardly a recipe for radical change. To critics on the left, it doesn’t go far enough. Still, it took nothing short of Floyd’s death beneath the knee of former Minneapolis police officer Derek Chauvin — and an enthusiastic outreach effort by Lee’s students — for legislators to take a close look at her model statute. In January 2020, a former student, then working for District of Columbia Councilmember Kenyan McDuffie, shared Lee’s model statute with her boss. But it wasn’t until after Floyd’s death that Lee learned that McDuffie had incorporated her measure into a use-of-force bill. Within days, the council unanimously adopted the statute as part of emergency police and justice reform legislation. “I was floored when I found out that D.C. had enacted police reform legislation that included my model statute,” Lee said. But the council took her statute one step further, she said. It held that police officers may use deadly force only after “all other options have been exhausted.” “This was a great addition to my model statute,” Lee said. Gregg Pemberton, chairman of the D.C. Police Union, said many of the provisions in the district legislation had been enacted by the Metropolitan Police Department years ago. “The MPD does not have issues with racial profiling or police brutality,” Pemberton said.
Less than a month after the District of Columbia adopted her model statute, an official in Connecticut Governor Ned Lamont’s office emailed Lee to inform her about proposed changes to the state’s use of deadly force statute based on her model legislation. “I was surprised and pleased to learn that Connecticut was looking into adopting key provisions from my model statute,” Lee said. In late July, Lamont, a Democrat, signed the bill into law, with an effective date of April 1. Shortly before the bill was to take effect, however, Lamont, under pressure from law enforcement groups, signed a bill delaying the effective date until January 1, 2022. Around the time Connecticut lawmakers were debating changing the state’s use-of-force standards last year, Virginia Governor Ralph Northam, a Democrat, called a special session of the state general assembly to meet on August 18 to pass criminal justice and policing reform. At that time Virginia was one of nine states that didn’t have a use-of-force statute. So Lee drafted a model statute for Virginia, including the District of Columbia requirement that an officer exhaust all other options before using deadly force. She had her research assistant send the document to about a dozen lawmakers. In October, Northam signed into law police reform legislation sponsored by state Senator Mamie Locke. It went into effect March 1. Unlike in Washington D.C. and Connecticut, law enforcement agencies were relatively open to the proposed changes. Dana Schrad, executive director of the Virginia Association of Chiefs of Police, said the group worked with state lawmakers “to make sure that there was a standard in there that allowed a law enforcement officer to protect his or her own life.”