USE OF FORCE

June 18, 2020

Let’s talk about use of force in police departments.

The news:

        Following weeks of nationwide protests, President Donald Trump signed an Executive Order on Tuesday that includes reforms such as incentivizing police departments to update their practices (including proving that use of force policies obey local, state, and federal law, incorporating de-escalation techniques, etc), creating a database for tracking incidents of excessive use of force, and more. 

Yesterday, Senate Republicans introduced The Justice Act, which increases disclosure requirements for no-knock warrants and use of force, incentivizes the banning of chokeholds, penalizes false reports, and other proposed reforms.

And earlier this month, following the death of Rayshard Brooks—an unarmed African-American man who was shot by police after being found asleep in his car—Atlanta Mayor Keisha Lance Bottoms announced reforms requiring the use of de-escalation techniques before the use of deadly or physical force.

What is use of force?

             The National Institute of Justice (part of the Department of Justice) defines it as the “amount of effort required by police to compel compliance by an unwilling subject.” Use of force is also accepted as a means of self-defense for officers, and is an accepted way for officers to protect a group of people, or another individual, from serious harm.

Use of force is also generally defined as a spectrum of different types of responses to a situation, a continuum. Police officers are expected to respond to a situation with the level of appropriateness that matches what is unfolding in front of them. If possible, they should escalate from one point in the continuum to another in a logical manner. Here are the components, according to the NIJ:

  • Officer Present—No force is used: The presence alone of an officer could be enough to de-escalate and, sometimes, resolve a situation
  • Verbalization—Force is non-physical: At first, an officer can issue calm verbal instruction or command. Then, if needed, they can give louder, more direct ones, like “Don’t move”
  • Empty-hand Control—Bodily force: Used to gain control of a situation at-hand. This can include the use of joint locks to restrain someone, or, even something like a kick or a punch to restrain someone
  • Less-lethal methods: Also used to gain control of a situation, but a step up. Methods include the use of pepper spray, Conducted Energy Devices (like tasers), blunt impact objects like batons, etc
  • Lethal Force: Use of lethal weapons to gain control and/or stop an individual’s actions. According to NIJ, such methods should “only be used if a suspect poses a serious threat to the officer or another individual”

Specific police departments have the power to add more detail to their use of force policies, giving their officers added guidance on what to do in the real world. Or, police departments can stick to the basics.

The origins of use of force:

The Supreme Court case Tennessee v. Garner (1985) involved officers who shot and killed an unarmed 15-year-old who broke into an unoccupied home. When the police officers arrived at the home, the suspect started running and then the police shot him. Here, the court decided that Garner’s death violated his Fourth Amendment rights (this amendment protects, among other things, people from unreasonable searches and seizures). The court then concluded that going forward, police officers were not permitted to use deadly force to prevent the escape of a suspect unless they suspected that the person “posed a significant threat of death or serious physical injury to the officer or others”. The Tennessee v. Garner (1985) decision set the precedent that in order for a seizure to be considered reasonable, two things must be balanced: the government’s interest in ensuring effective enforcement of the law, and the extent of the intrusion of a suspect’s constitutional rights.

Then in 1989, the Supreme Court case Graham v. Connor —involving a man who was handcuffed and injured by a police officer under false suspicion of stealing from a local store—established that the courts must also assess if the use of force is “objectively reasonable”.

What does “objectively reasonable” mean? The courts take the point of view of an officer who, most likely, must make split-second decisions under immense amounts of pressure. 

Were the actions taken reasonable to a level-headed officer who is under pressure, given the particular circumstance and facts in front of them when the incident occurred? In assessing this, there’s no room for “hindsight is 20-20” analysis. It has to be looked at considering what the officer knew as the situation was unfolding at the time.

There is a four-prong set of criteria for establishing objective reasonableness:

  1. What was the severity of the crime?
  2. Did the suspect present an immediate threat to the officer in question or to others?
  3. Was the suspect actively resisting arrest at the time?
  4. Was the suspect fleeing arrest at the time (or was a flight risk)?

In any given case, for example, the more severe the crime, the greater or more intrusive a force option can be. Same for if the suspect is an immediate threat, is resisting arrest, or is fleeing arrest.

Use of force complications:

Double standards:

             Like we learned last week during our deep-dive into qualified immunity, many of the laws and legal doctrines surrounding law enforcement operate under the belief that police officers deserve added protections and the benefit of the doubt because of the  dangerous work that they do. This can be well-intentioned, and can present harmful double standards. 

Take the self-defense justification for police use of force. Cynthia Lee is a Professor of Criminal Law, Criminal Procedure, and Professional Responsibility at George Washington University. In a 2018 paper, Lee argues that the proportionality aspect for police officers, as compared to civilians, is too imbalanced. She asserts that in most cases, an ordinary civilian who claims self-defense must prove in court that the “use of deadly force arose out of an honest and reasonable belief that she was being threatened with death or serious bodily injury.” In other words, “a civilian claiming self-defense needs to show that her use of force was proportional to the force threatened.” 

But this is not the same standard for police officers in many jurisdictions, “Many state statutes appear to have a proportionality requirement but do not actually require proportionality.” These statutes may permit a police officer to use deadly force if the officer reasonably believes such force is necessary to arrest a felon, prevent their escape—or to protect the officer involved from death or major bodily injury. That “or” is very important, as Lee explains in her paper, “One or more conditions may give these laws the appearance of a proportionality requirement, but if there is an ‘or’ before the last clause, an officer would be justified in using deadly force even if the suspect posed no threat of death or serious bodily injury.” Lee cites Alabama as an example,  “…the Alabama statute allows officers to use deadly force to make an arrest or prevent the escape of a fleeing felon so long as the officer believes that the use of deadly force is reasonably necessary to make that arrest or prevent that escape, even if the officer does not believe that the individual poses an imminent threat of death or serious bodily injury to the officer or others.”

             Professor Lee also addresses another double standard: necessity. For the average civilian charged with something like murder and trying to use a self-defense claim, they would have to prove that deadly force was the only option, or one of a very few available, to prevent death or serious bodily harm. They’d need to prove that a less deadly option wasn’t available at the time. It’s different for police officers. Lee points out that in many states, juries are not allowed to consider if an officer had less deadly alternatives at their disposal, which, while at times helpful, does present a serious problem. “It is understandable that courts concerned about juries second-guessing the police officer have tended to reject the idea of allowing the jury to consider whether less deadly alternatives were available and not used, but this automatic rejection does not seem appropriate given that assessments of reasonableness are supposed to involve a consideration of the totality of the circumstances.” Juries not fully considering the possibility of less deadly force options can make it difficult to tell if deadly use of force was necessary in the first place, Lee explains. “Moreover, if a less deadly alternative was available—if an officer could have effectuated the arrest, prevented the escape, or countered the threat without resorting to deadly force—it is difficult to conclude that the officer’s use of deadly force was necessary.”

Lack of data:

            There are programs and policies such as de-escalation and implicit bias training already in use in police departments across the country. But the data is mixed on their effectiveness, and in general, there is a lack of national, comprehensive data on the efficacy of such programs. 

Geoffrey P. Alpert is a professor at the University of South Carolina’s Department of Criminology and Criminal Justice. He says that reducing deadly use of force isn’t possible without the right numbers, even with these programs on the books at local police departments.“De-escalation training and implicit bias training, they’ve not been very well evaluated, so we don’t know how well they’ve worked. Without the data, it’s really hard to figure out how best to fix an issue when we don’t really know what the issue is.”

At the moment, there is no comprehensive, up-to-date national data collection system for such information (although recently introduced Congressional legislation and action from the Executive Branch may change that shortly. The FBI has tried to implement such a database, but as The Washington Post reported, only 40% of police departments actually participated).

This means that some police departments submit use of force data to the federal government, while others don’t—because they technically don’t have to. “They’re not under any obligation to submit anything, so they don’t. If you’re a small department, it costs you money to put it together…so they just don’t do it,” Alpert says. 

Ronald Tyler, a Professor of Law and Director of Stanford University’s Criminal Defense Clinic, agrees with the need for more data. “There really does need to be comprehensive reporting.”

While there are some successful case studies, like in Las Vegas’ police department, the general consensus is that, again, there is not enough data to make larger assessments on whether these programs truly work, as noted in a study from the journal Criminology & Public Policy, “Although assessment outcomes reveal few adverse consequences and provide some confidence that de‐escalation trainings lead to slight‐to‐moderate individual and organizational improvements, conclusions concerning the effectiveness of de‐escalation training are limited by the questionable quality of almost all evaluation research designs.”  

Need for independent accountability:

               In many cases in which police officers are investigated for excessive use of force or unnecessary deadly use of force, it is the local District Attorney (or a similar role) who carries out the investigation. This may make some sense on a bureaucratic level, but it presents a conflict of interest that can obstruct real justice. Scott Michelman is the Legal Director for the ACLU of D.C. He asserts that “having independent investigation and prosecution is very important because police officers and prosecutors offices regularly work together in support of obtaining convictions for crimes.” Furthermore, “Our state or local prosecutor’s office is not as likely to prosecute for civil rights violations against the same officers that they work with on a regular basis. Having an independent prosecutor whose job it is just to focus on these cases is likely to be more effective because that person won’t have other interests that depend on a good working relationship with the police department.”

Professor Tyler says that such external, independent accountability could come from citizen review boards. “It doesn’t do any good to have officers who are reviewed only by their peers.” Additionally, those citizen review boards need to be given the authority to do their jobs properly and in a timely manner. “It doesn’t do any good to have citizen review boards that are so emasculated that they don’t even get involved in an investigation until late, and then have no ability to compel all the evidence that they really need. An oversight board that actually has true oversight powers is a key part of this.”

Cultural perspective:

                Lastly, to decrease excessive and lethal use of force, a broader culture shift is needed. A culture shift in which consequences for police officers feel more real and concrete to them on the job. Professor Tyler says that real change can’t fully happen “until there is an actual shift in the balance of power, so that individual officers actually have to pause before they take action because they would recognize that their career could be on the line, their livelihood, maybe even that even their freedom could be on the line.” The culture right now, as it stands, is problematic. “We have a common cultural understanding that the officers get the benefit of the doubt  because it’s such a dangerous world out there.” But instead, he says, we need to shift our focus and look at a few other things, “the narrative needs to be about the sanctity of human life and the over-policing of communities.” 

If we switch our perspective and start focusing on these issues, he says, there could be better outcomes for everyone. “If the narrative goes to something like that, then that guides decisions that are made about what we need to put in place to correct the problem.”

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