How can we de-escalate the use of deadly force?

The police shootings occurring across the country, including the shooting of Jamar Clark in Minneapolis, have one thing in common: the resulting confusion as to when the use of deadly force constitutes a crime.

There is reason for confusion. The applicable law is complicated. Decisions handed down by the U.S. Supreme Court set standards for the lawful use of deadly force by police officers nationwide. Each state also has its own laws defining the potential crimes at issue, such as manslaughter or murder.

The Supreme Court rulings establish three key principles. First, a police officer has a right to use force in making an arrest, including deadly force. Second, deadly force is appropriate when the officer reasonably believes that the person to be arrested poses a threat of serious physical harm. Third, the assessment of reasonableness must allow for the fact "that officers often make split-second judgments — in circumstances that are often tense, uncertain and rapidly evolving."

The Supreme Court also has set out factors that cannot be considered. Subjective factors, such as an officer's possible racial bias, are not relevant (though it would be pertinent to a civil rights lawsuit). Nor does it matter if the threat could have been diffused if the officer had behaved differently prior to needing to use deadly force. The focus is entirely on the moment that deadly force was used.

Minnesota law also sets a high bar for prosecution of officers involved in the use of deadly force. Second-degree manslaughter, the crime most likely to be considered, applies to all Minnesotans — not just police. It requires proof of culpable negligence, which includes an element of recklessness that is difficult to prove in most situations.

The law, in seeking a balance between public safety and individual rights, clearly tilts toward giving the police discretion to use force if necessary to make an arrest. And a prosecutor or a grand jury evaluating an officer's decision must follow the dictates of the U.S. Supreme Court and the state Legislature.

While the law may evolve over time, we believe that the immediate focus should be on developing strategies that reduce the need for force to be used. Police departments can and should develop de-escalation policies with that goal in mind — and ask for community input and assistance in their development. Training then is needed to implement the policies.

The Seattle Police Department recently adopted de-escalation guidelines, setting out strategies to be used when safe — and when time and circumstances permit — with the aim of obtaining the voluntary cooperation of people who otherwise would resist arrest or restraint.

Seattle's guidelines require officers to consider whether or not the subject's resistance is deliberate or possibly the product of mental impairments, language barriers or a behavioral crisis. Tactical options are identified, such as the officer moving to a safer position, using verbal techniques to calm an agitated subject and calling more officers to the scene, particularly those equipped with nonlethal tools.

De-escalation polices should not — in fact, cannot — limit the discretion that police officers have under the law to use deadly force when needed. Officer safety and the safety of the public at large must be protected. This will, on occasion, require the use of force.

At the same time, the community should have confidence that when police arrive at a scene like those coming to the nation's attention, they are directed and trained to calm the situation and seek voluntary compliance whenever that is possible.

Our hope is that we can all work together to achieve a higher level of trust between the police and the community, particularly people of color, by ensuring that the use of force, especially deadly force, is as rare as possible.

Former Hennepin County Attorney Tom Johnson and former Ramsey County Attorney Susan Gaertner both are now in private practice.