The important thing to understand about “due process” is that it has no clear and specific meaning. Due process means whatever a court or judge says in a particular time and place and circumstance. 

I’m not saying due process isn’t important or that it hasn’t been the subject of a tremendous amount of thought. There are many books just about the meaning of due process. I’m sure there are law school courses that focus on little else than due process. Police departments and municipal courts have procedural manuals expressing quite carefully what officers should and shouldn’t do in various situations. But that proves my point. The meaning varies from time to time and from place to place. It only takes a long time to define or describe something if it’s meaning is complex, conditional or ambiguous.

The phrase “due process” is not mentioned in the Federalist Papers or in the original Constitution. It appears for the first time in the 5th Amendment.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Tying the main words together, it says, “No person shall be . . . deprived of life, liberty, or property, without due process of law.”

Due Process is again mentioned in the 14th Amendment, which was adopted in 1868.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Both these amendments seem to protect citizens' lives and property. But how? Neither amendment says the government may not kill you or take your stuff. They only say the government has to take steps before it kills you or takes your stuff. It’s not much of a protection at all.

Every year in America nearly 1,000 people are shot and killed by police. The Washington Post keeps a running tally and maintains a database. Getting shot down in the street (or in your own home) by government agents would seem to be the most flagrant way to be “deprived of life, liberty or property without due process of law.” Yet it happens.

Some will say that officers who shoot people unjustifiably are culpable for prosecution. And police officers are sometimes convicted for shooting unarmed and nonthreatening citizens. But more often, internal police investigations conclude that the officer followed proper procedure.

The Constitution prohibits killing someone without first taking the proper steps. But police officers who kill on the spur of the moment are often exonerated because they complied with their local procedural rules. That doesn’t make the Constitution seem much like “the Supreme Law of the Land.”

The explanation is this: the Constitution does not say “No person shall be deprived of life.” It says “No person shall be . . . deprived of life, liberty, or property, without due process of law.” And due process is, as I said before, a flexible notion.

An important US Supreme Court case, Tennessee v. Garner, says a police officer may use deadly force to prevent the escape of a fleeing suspect only if the officer has a good-faith belief that the suspect poses a significant threat of death or serious physical injury to the officer or others. That means they can use deadly force if they do suspect a threat.

There is also a tradition that insists that review boards, juries or the public at large should not second guess the choices and actions a law enforcement officer makes in the heat of action. Even if evidence collected afterward shows no justification for excessive or deadly force existed at the moment of action, it is still wrong to criticize the officer’s actions. That rule is supported by another Supreme Court case — Graham v. Connor. That case is really quite surprising. It says that “the 20/20 vision of hindsight” – meaning the correct facts of the matter – must not be applied against a police officer.

 Put these two items together – the one that says an officer may shoot a suspect if he “has a good-faith belief that the suspect poses a significant threat of death or serious physical injury to the officer or others” with the one that says the officer’s claim of good faith matters more than the facts – and you get a situation where an officer is justified for shooting someone simply by saying “I believed the suspect posed a threat to myself or others.” The threat doesn’t have to be real. The officer doesn’t even have to mean it. Just reciting the formula, “I believed the suspect posed a threat,” is all it takes.

That is what due process has come to mean.

Please don’t think I’m saying more here than I am. I make no assertions here about the rightness or wrongness of any particular police shooting. I certainly am not saying that all police officers are bad, or that any specific ones are bad.

in fact I am saying quite the opposite. What keeps police officers from shooting citizens more than they do is the overwhelming decency of the officers themselves. Their goodness is a far more powerful constraint than the Constitution.

The line that runs from the “unalienable right to life” in the Declaration of Independence through the 5th Amendment promise that “No person shall be deprived of life” to almost a thousand police shootings every year is a downward path.

Think:

• What did you believe, before reading this, the phrase “due process” meant? Has that changed?

• Do you approve the police practice of shooting fleeing suspects in the back? Does your answer change in cases where the police officer knows the suspect to be a guilty criminal?