Evaluating Police Uses of Force. Seth W. Stoughton
different answers to the question, “How can society assess a particular shooting?” but not to the broader question, “How can society assess police shootings in the United States taken as a whole?”
We are cognizant that our focus on individual incidents excludes controversial and important aspects of police uses of force, including, for example, the racial dynamics of the criminal justice system generally, of policing, and of the use of force specifically. There is good reason to think that the use of force is not evenly distributed along racial lines. In a survey administered by the Bureau of Justice Statistics, 1.3 percent of white respondents reported being subjected to a use of force, compared to 3.3 percent of black respondents, which suggests that there exists, at a minimum, a racially disproportionate perception that officers have used force. While force was perceived as “necessary” by roughly the same percentage of blacks (32 percent) and whites (32.4 percent), the perception that force was “excessive” was reported more often by blacks (59.9 percent) than whites (42.7 percent). Further, data gathered by the FBI and various media outlets suggests that this is not just a matter of perception, at least in the context of officer-involved homicides: 13.4 percent of the US population, but more than 30 percent of individuals killed by police, are black.
These observations are deeply troubling, implicating longstanding concerns about racial equality—or, more accurately, the lack thereof—in the United States and the manner in which policing as an institution has perpetuated inequity, both historically and today. They give rise to a series of challenging sociological quandaries. There is, of course, the very real possibility that individual officers act out of racial animus on at least some occasions. The picture is almost certainly more complicated than that, though. It is almost certainly the case that if officers are more likely to interact with black individuals, then, all other things being equal, we would expect them to use force at a higher rate against that population group. That, however, does nothing to explain why officers are more likely to interact with black individuals. The answer is likely systemic, reflecting the correlation between urban poverty and crime and a long, distressing history of race-conscious, and often overtly race-motivated, choices relating to education policy, housing policy, and economic policy, not to mention criminal justice policy. The looming role that race has played, and continues to play, in shaping how we define a “threat” or “threatening behavior” undoubtedly affects police uses of force. This is true at the wholesale level, where the identification of certain substances, but not others, as “illicit drugs” or the distinction between drugs and “hard” drugs is rife with racial overtones; consider the Federal Sentencing Guidelines’ 100:1 disparity—later reduced to an 18:1 disparity—between crack cocaine and powder cocaine, in which possession of one gram of crack (a drug associated primarily with black users and dealers) was punished at the same severity as one hundred grams of powder cocaine (a drug associated primarily with white users and dealers). Or consider the difference in the law enforcement-oriented response to the crack cocaine epidemic of the 1980s and early 1990s, when the drug was largely confined to poor, inner city (read: predominantly black) communities and the public health–oriented response to the modern heroin epidemic, which has spread into middle- and upper-class suburban (read: predominantly white) communities.
It is impossible to entirely disaggregate the social dynamics of race and class from policing and the use of force, and we do not attempt to do so. We do, however, consciously avoid tackling head-on such complex and complicated issues: that discussion is very much needed, but it is simply outside the scope of what we set out to do in this book.
To reiterate, our focus in this book is narrow: we seek to explore how individual police uses of force are evaluated. Nevertheless, this book is both necessary and a significant contribution to public and academic debates about police violence. Police uses of force are the single most visceral and divisive aspect of contemporary policing. Police kill almost three people a day,8 and people have responded with protests, civil unrest, and horrifying ambushes that have resulted in the murder of police officers in Texas, Pennsylvania, Louisiana, and elsewhere. And yet, the public conversation about police uses of force has focused almost exclusively on whether individual officers who used excessive force in individual incidents should be criminally punished, without much, if any, broader discussion about how to determine whether the force used was excessive.
This is even more remarkable in light of the observation that the use of force by police has been studied for more than fifty years. There was only limited academic interest in the subject until the 1960s, when scholars like James Fyfe began conducting research and building a budding literature. Even then, the use of force was not the subject of sustained academic attention until 1980. That year, interest was energized by the publication of volume 452 of The Annals of the American Academy of Political and Social Science; that volume was a special edition that brought to the attention of a broad academic community the nature and scope of existing academic work on use-of-force issues.9 Since then, there have been marked improvements in the academic literature.10 Today, the use of force by police is an accepted topic for researchers and practitioners alike. Indeed, a volume of the Annals to be published in 2020 will be dedicated to research on fatal police shootings. These important research questions continue to develop, and interested scholars and practitioners investigate them and report their findings,11 but scant attention has been paid to the analytical topics we address in this book: the various evaluative standards for use-of-force incidents and the tactics and tools of police violence.
Part I
Standards for Evaluating Police Uses of Force
In August 2014, an officer working for the municipal police department in the then-little-known St. Louis suburb of Ferguson, Missouri, shot and killed Michael Brown, an unarmed, black 18-year-old. The St. Louis County Prosecutor, Robert McCulloch, convened a grand jury to determine whether there was sufficient evidence to indict the officer. It was, by any measure, a complicated undertaking. The jurors met for months, heard hours of testimony from dozens of witnesses, and reviewed thousands of pages of documents. They also learned about how they should determine whether or not to indict the officer. The grand jury was first provided with a copy of a state statute that authorized the use of deadly force in certain circumstances, including to prevent the escape of a fleeing felon. Later, the grand jury was told about a Supreme Court case that held that officers can use deadly force only when they have probable cause to believe that the subject presents an imminent threat of death or great bodily harm.
What, then, should the grand jury have done if it concluded that, at the time of the shooting, Michael Brown was a fleeing felon, but did not present an imminent threat of death or great bodily harm? Applying the state statute, the officer’s actions were lawful, and an indictment would be unwarranted. Applying the Supreme Court case, the officer’s actions were unlawful, and an indictment would be entirely appropriate.
As that example demonstrates, the standard that is used to analyze a use of force is of tremendous practical importance. So which standard is the right one? Confusingly, there is no one “right” standard; it depends on context. More confusingly, there are at least four different standards that can be used to evaluate an officer’s use of force in the United States: the constitutional standard, the state law standard, the administrative standard, and the community expectations standard.
The first three standards—constitutional law, state law, and administrative regulations—each play a formal role in the evaluation of use-of-force incidents. When an officer’s use of force violates one or more of those standards, sanctions or remedies may be imposed. An officer who violates an administrative regulation, for example, can be disciplined or terminated by their agency, while a violation of the state or constitutional standards can result in civil liability or a criminal conviction.
For the other standard—community expectations—violations do not result in formal remedies. However, those standards remain important because violations can have significant, if informal, consequences: an officer, agency, or policing itself, as an institution, may be subject to public condemnation. In July 2017, for example,