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A Just War Inquiry of Police, Prosecutors and Deadly Force

Publication Title

Washington University Jurisprudence Review

Abstract

Law enforcement is authorized to use deadly force under limited circumstances in the United States. Most do not dispute that there are some clear cases when the use of deadly force is warranted. The more controversial issues arise when attempting to articulate limits on when lethal force is justified. While theorists and academics can contemplate how police officers should act in the abstract, law enforcement does not have the same luxury when they are out on patrol and their lives are in constant jeopardy. The present analysis will attempt to create a clear framework for determining when law enforcement are justified in using lethal force, applying just war theory to bridge the difference between theoretical approaches and the reality of police officers faced with a split-second decision. This inquiry will not begin from a legalist paradigm, but a moral one. Once a robust descriptive account of the current state of the law is developed, the principles of just war theory will be used as a framework to provide compelling normative responses to two questions. First, when is a police officer justified in using deadly force on a fleeing felon? Second, what is required of prosecutors who make the decision not to seek indictment of a police officer who used deadly force? This article advocates for a nationwide implementation of the “California Model”, a rigorous and transparent protocol for determining whether a prosecuting agency will initiate criminal proceedings against a police officer that used deadly force and publicizing the rationale for that decision. The goal of this analysis is to first, demonstrate the applicability of the just war tradition to the law governing use of deadly force by law enforcement, in the context of the “fleeing felon,” and second, draw on just war principles to evaluate how prosecutorial agencies should proceed after a police officer has used deadly force.

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