Many fatal shootings by police are not warranted. These shootings impose losses on the victims and their families and also manifest an apparent failure of existing administrative and legal restraints to deter these unwarranted shootings. This Article proposes a revamping of existing incentives to both provide more adequate compensation to the victims’ families and to establish levels of deterrence that are sufficient to curtail unjust fatalities.
There are legal criteria for what level of force is ‘reasonable’, but determining reasonableness in practice may be difficult. Practical guidance such as the ’21-foot rule’ for the threat to warrant a shooting is often problematic. The extent to which there is a problem of wrongful deaths resulting from police shootings is difficult to ascertain based on governmental statistics, which understate the total level of these killings. The Washington Post’s Fatal Force dataset of on-duty fatal police shootings seeks to rectify this informational gap, providing a list of almost 1,000 fatal police shootings annually since 2015. This inventory also provides facts from public reports of the shootings, including how the shooting conforms to pertinent legal criteria of whether the victim was armed or fleeing the scene. Even if the police shooting was not warranted, there may be both legal and practical barriers to obtaining compensation for the victim’s estate from the municipality …
Viscusi, W Kip and Jeffrey, Scott, Damages to Deter Police Shootings (February 11, 2020). Vanderbilt Law Research Paper No 20-08.