Damages to Deter Police Shootings

Abstract

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. Some of the relatively high profile cases have received compensation that is in line with compensation levels in wrongful death cases generally. However, except for some very rare exceptions, the compensation amount is well below the value that the government places on reducing mortality risks through government regulations. As a result, the compensation falls short of the levels needed to provide adequate deterrence to reduce these killings. To provide sufficient incentives, this Article proposes that the total level of damages for police shootings be consistent with the value of a statistical life used by government agencies when monetizing mortality risk reductions for government regulations. This value is now in the $10 million range per expected fatality. Such amounts are too high from the standpoint of setting conventional compensatory damages levels, but they provide a pertinent reference point for setting punitive damages and the total level of damages needed to establish appropriate levels of deterrence. The proposed trigger for such award levels is when the officer has displayed a callous disregard for the rights of others or if other punitive damages criteria are met. In the absence of such punitive damages awards, monetizing the expected risks that can be prevented through improved police practices can be accomplished by using the value of a statistical life to guide police practices. Unlike the current low level of settlements and awards for police shootings, this approach provides appropriate guidance to municipalities to monetize fatality risks and to undertake benefit-cost analyses of policies to reduce unreasonable police shootings. There have been recent calls for more benefit-cost analysis of policing, including the use of force, although the costs to the victims from police use of force have served as a barrier to such analyses. This Article overcomes this barrier by using the value of a statistical life as an empirically-validated measure of the most direct cost of fatal use of force. This approach provides the basis for calculating the first monetized estimate of the cost of police shootings. This Article calculates the aggregate monetized value for the loss of life from all police shootings from 2015 to 2018, which is $39.3 billion. If the shootings are restricted to those in which the victim was either unarmed or fleeing, the total mortality cost is $12.1 billion. Of this amount, the total mortality cost is $2.55 billion for victims who were both fleeing and unarmed. Disincentivizing these shootings is a critical step for courts to deter police shootings and promote effective policing.