Tripartite Deadly Force: A New Taxonomy to Explain Police Violence

Abstract

Police kill a thousand Americans every year. Scholarship and doctrine discuss decisions to kill as if they are all alike—but they are not. Killing an active shooter and an unarmed teenager should not be labeled or understood as coequal. In the realm of state uses of force, distinctions between types of kinetic force have long been recognized, but such a distinction has not made its way into literature about police uses of deadly force. Failing to distinguish between types of deadly force, is not only intellectually dishonest but analytically counterproductive. In this article, I contend that police killings can be broken into three categories: reactive, anticipatory, and preemptive deadly force. These delineations represent three broad categories, in which an officer’s decision to kill is supported by minimal, some, or solely speculation. By dividing the deadly force ecosystem into distinct domains, we can compare like against like. To operationalize the model, I draw on Equal Protection law, and argue that reactive, anticipatory, preemptive deadly force should be analyzed differently, like we analyze statutes under the tiers of scrutiny. By analyzing the legality of force according to its category under this model, we can better capture both the interests at play and the risks an officer’s conclusions are incorrect. At bottom, this article offers a more granular articulation of decisions to kill, which can facilitate discussions, trainings, research, and litigation on deadly force, benefiting scholars, courts, litigants, departments, and officers themselves.