Damages to Deter Police Shootings

VISCUSI.DOCX (DO NOT DELETE) 8/9/21 6:48 PM DAMAGES TO DETER POLICE SHOOTINGS W. Kip Viscusi* Scott Jeffrey** Many fatal shootings by police are not warranted. These shootings impose losses on the victims and their families and reflect the 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 munici- pality. Some of the relatively high-profile cases have received compensation in line with compensation levels in wrongful death cases generally. But except for some very rare exceptions, the compensation amount in wrongful police shooting cases 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 * University Distinguished Professor of Law, Economics, and Management, Vanderbilt Law School, 131 21st Ave. South, Nashville, TN 37203. [email protected]. ** Vanderbilt Law School, Ph.D. Program in Law and Economics. [email protected]. The authors would like to thank the University of Illinois Law Review for their careful and thoughtful improve- ments to this Article. 741 VISCUSI.DOCX (DO NOT DELETE) 8/9/21 6:48 PM 742 UNIVERSITY OF ILLINOIS LAW REVIEW [Vol. 2021 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 damage awards, monetizing the expected risks that can be prevented through im- proved 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 analyses of policing, including the use of force, although calculating 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 empiri- cally 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. Further, this Article calculates the aggregate monetized value for the loss of life from all police shootings from 2015 to 2018, which totals $39.3 billion. If the shootings are restricted to those in which the victim was either unarmed or fleeing, the total mortality cost totals $12.1 billion. Of this amount, the total mortality cost is $2.55 billion for all unarmed victims, and $1.14 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. TABLE OF CONTENTS I. INTRODUCTION ........................................................................................ 743 II. WHEN CAN A POLICE OFFICER KILL YOU? ............................................. 752 A. The Reasonable Use of Force ......................................................... 753 B. Misperceptions Regarding the Reasonable Use of Force ............... 759 C. Legal Difficulties for Deterrents to Police Shootings ..................... 761 III. GOVERNMENTAL ESTIMATES OF POLICE USE OF FORCE ........................ 764 IV. THE WASHINGTON POST’S FATAL FORCE DATABASE .............................. 768 A. The Washington Post’s Fatal Force Database ............................... 768 B. Characteristics of Shootings in the Fatal Force Database ............ 771 V. HOW MUCH ARE PAYOUTS FOR WRONGFUL DEATH CLAIMS? .............. 772 A. Overall Statistics of Payouts After Wrongful Deaths ..................... 772 B. The Civil Justice Survey of State Courts Data ................................ 776 C. Wrongful Death Payouts in Police Shootings with Prominent Media Coverage ............................................................ 779 VI. HOW SHOULD DAMAGES BE SET? WRONGFUL DEATH COMPENSATION AND THE VALUE OF A STATISTICAL LIFE ................................................ 784 A. Using the Value of a Statistical Life to Monetize Police Killings ................................................................................. 785 VISCUSI.DOCX (DO NOT DELETE) 8/9/21 6:48 PM No. 3] DAMAGES TO DETER POLICE SHOOTINGS 743 B. The Aggregate Cost of Police Shootings ........................................ 789 C. Achieving Deterrence Through Making Government Pay .............. 790 VII. FIXING THE SYSTEM: BENEFIT-COST ANALYSIS OF POLICE TACTICS AND USE OF FORCE ................................................................................. 793 VIII. CONCLUSION: TOWARD EFFECTIVE DETERRENCE OF POLICE SHOOTINGS ................................................................................. 796 APPENDIX TABLE 1: SOURCES FOR POLICE SHOOTING VICTIMS IN TABLES 6 & 7 .......................................................................................... 798 I. INTRODUCTION Damages awards aNd Out-of-court settlements after police shootings have a twOfold purpOse. These paYOuts serve bOth to cOmpeNsate the victims aNd to provide financial incentives to deter such police shootings in the future.1 This Article examines the prevalence of such fatal police shootings,2 the prepONderaNce Of black males among the victims of these shootings, and the level of compensation that the families Of these victims receive. There is substaNtial variability in the treatmeNt Of these incideNts, as some deaths are accOrded very low cOmpeNsatioN amounts, while others receive compensation more in line with typical wrongful death awards.3 More impOrtaNt frOm the staNdpOiNt Of prOvidiNg finaNcial inceN- tives for deterreNce is that the level Of these finaNcial saNctioNs almOst invariably is below the finaNcial amOuNt that the gOvernmeNt believes is appropriate to speNd to reduce mOrtality risks through gOvernmeNt regulatioNs.4 The curreNt level Of such values assigNed to each expected death averted bY gOvernmeNt regulations is about $10 million, which this Article uses as the financial reference point for the appropriate level of damages to deter fatalities from police shootings.5 We will refer to this value as the “optimal deterrence amount.”6 This Article prOpOses that the curreNt fiNaNcial iNceNtives shOrtfall be rec- tified aNd that paYOuts be aligNed with hOw the federal gOvernmeNt mONetizes expected fatalities that are prevented by government policies.7 The cOurts shOuld award damages that establish effective deterrence levels to establish incentives 1. Eleanor Lumsden, How Much Is Police Brutality Costing America?, 40 U. HAW. L. REV. 142, 160 (2017); Rashawn Ray, How Can We Enhance Police Accountability in the United States, BROOKINGS (Aug. 25, 2020), https://www.brookings.edu/policy2020/votervital/how-can-we-enhance-police-accountability-in-the- united-states/ [https://perma.cc/V6F7-RQFR]. 2. We refer to incidents where on-duty police officers or deputy sheriffs shoot and kill someone as a “fatal police shooting,” or a “fatal shooting by police.” Fatal police shootings do not refer to incidents where police officers are fatally shot. 3. See, e.g., Ray, supra note 1 (discussing large settlements paid by major U.S. cities for police miscon- duct cases); Timothy Williams & Mitch Smith, $16 Million vs. $4: In Fatal Police Shootings, Payouts Vary Widely. N.Y. TIMES (June 28, 2018), https://www.nytimes.com/2018/06/28/us/police-shootings-payouts.html [https://perma.cc/8NHQ-RMLA] (contrasting between payout sizes and noting wide disparities).

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