By Derek Stikeleather

The use of deadly force by police officers in the line of duty has never been uncontroversial. But the police killing of George Floyd in Minneapolis on Memorial Day weekend has sparked an unprecedented national—even global—protest movement to re-examine the use of deadly force by police and the role of lawful police violence in perpetuating systemic American racism. Mr. Floyd’s killing was extraordinary in its stark inhumanity. But it galvanized millions because of its terrible familiarity to too many Americans who see police resort to deadly force in situations that often erupt from relatively minor infractions.

A Fourth Circuit panel recently captured the national mood when it declared, “This has to stop.” Estate of Jones v. City of Martinsburg (4th Cir. June 9, 2020). The Jones decision reversed a trial court’s ruling that had awarded qualified immunity to five Martinsburg, West Virginia, police officers who had killed a mentally ill homeless Black man by shooting him 22 times. The killing occurred shortly after one of the officers had stopped the man for walking in the road.

Like every American state, Maryland is deeply engaged in this difficult national conversation. State and federal laws have long recognized and accommodated the fact that officers must make split-second decisions on the use of force when running into unstable and often dangerous situations. The law does not limit them to using only the level and type of force that 20/20 hindsight later reveals as optimal. But society has also grown increasingly wary of rules and systems that seem to leave police officers unaccountable and even embolden some to brutalize citizens with impunity. Much of this sea-change in public opinion has been driven by the sudden ubiquity of cell phone, bodycam, and other video evidence—and social media platforms that facilitate “viral” dissemination—that brings these violent encounters into public view.

In this moment of intense national reflection, Maryland’s Court of Appeals recently handed down a 4-3 decision that captures the complexity of crafting and applying legal rules to properly regulate police conduct—even when an encounter is video recorded. Estate of Blair v. Austin, No. 35, September Term 2019 (June 2, 2020). Read More…