Criminal charges are rare, almost non-existent, for those who are licensed to kill. Those cases that are charged rarely result in convictions. At common law, police officers were essentially given such a license; they were “allowed the use of whatever force was necessary to effect the arrest of a fleeing felon.” The United States Supreme Court imposed some level of restriction on that license by holding that deadly force “may not be used unless it is necessary to prevent the escape” of a felon “and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” However, since Garner was a civil case, the States remained free to determine under what circumstances officers can be held criminally liable for using deadly force. Almost all states still provide immense protection for officers who use deadly force on civilians under certain circumstances. According to the United States Supreme Court, that standard is whether the use of force was “reasonable” as determined “from the perspective of a reasonable officer on the scene.” This standard provides great deference to police officers because of their need to “make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.”

The result of this standard has been a series of “lawful but awful” incidents, as Chuck Wexler, executive director of the Police Executive Research Forum refers to them. What this morbid phrase refers to is “the most controversial police shooting incidents.” Lawful in the sense that “the shooting may be legally justified,” but awful in that “there were missed opportunities to ratchet down the encounter, to slow things down, to call in additional resources, in the minutes before the shooting occurred.” But even in these awful situations, the shooting may be lawful because it was what a “reasonable officer on the scene” would do “in light of the facts and circumstances confronting them.” To date, charging decisions related to officer-involved shootings that result in civilian death and any cases that have  dealt with the issue have used the “reasonableness” standard laid out in Graham. Determining what action an officer in a specific situation would have found reasonable has included taking an officer’s training and experience into consideration. Further, Supreme Court decisions have narrowed the analysis such that any “reasonableness” determination must focus on the precise moment the officer applies deadly force.

The Supreme Court’s decisions on how to analyze whether a police officer is liable for his or her use of deadly force present a complex issue for district attorneys contemplating criminal charges. Specifically, the rulings made by the Court all pertain to alleged civil rights violations under the Fourth Amendment. As such, the Court has directed that for civil lawsuits brought under 42 U.S.C. §1983, a police officer’s conduct must be evaluated using the same “reasonableness” standard listed in the Fourth Amendment. However, criminal cases are different from civil cases. While a defense to a deprivation of constitutional rights claim is whether the actions by a public official were constitutional, defenses to criminal charges usually take the form of justification and, like the criminal laws themselves, are determined by the states. What remains unclear is how the Supreme Court’s decisions are to be taken when determining whether an officer is immune from criminal prosecution for a homicide or assault on the grounds of self-defense or other justification.

This Article will briefly summarize the context and legal basis of the United States Supreme Court’s decisions in police use of force cases in Part II. In Part III, this Article will address the difference between civil and criminal cases and discuss the general principles of justification as a defense to criminal prosecution. Finally, Part IV will argue that the analysis articulated by the Supreme Court in police use of force cases is instructive but not controlling for how prosecutors and state courts should analyze the criminal liability of police officers for certain actions. This argument will be based on the fact that the legal defense of justification to a criminal prosecution differs in significant ways from the legal issues presented in Fourth Amendment civil rights cases.