Help

Chapter 6. Police Discretion and Dilemma

Introduction

In this chapter, we will focus on how police officers utilize their discretion. Recall that discretion is the power to make a choice of action from several alternatives. Even the youngest and newest patrol officer has an awesome power over the rest of us. While most police officers are respectful of those they encounter and abide by the law; if they do not, there is little immediate recourse; if you refuse or resist, you may be subject to physical force. If a police officer insists you stop your car, you must. If they ask to search your car, you may say no, but they can then make you wait a “reasonable” amount of time for a drug-sniffing dog or arrest you for a minor traffic violation. If an officer insists you sit down on the curb, you must; if he insists you leave the area, you must; and, in a few troubling cases across the country, if an officer insists you submit to a body cavity search on a public street, people do; as described in the In the News box. Officers who conduct unconstitutional searches may be punished later and victims may receive large settlements (paid by the taxpayers, not the offending officers); however, the fact remains that, at that moment, the individual officer’s power is supreme. The fact that unreasonable and/or illegal applications of such power are more likely to be visited upon the poor and disenfranchised in this country is a truism that should not be ignored. Police officers don’t police Wall Street like they police Watts; perhaps if they did, we would see a stronger reaction to police abuse of power. Those few officers who do abuse their power make it much harder for most officers who use their discretion wisely, ethically, and for the good of the community.

Most ethical dilemmas that police officers face derive from their powers of discretion. Muir (1977) describes moral dilemmas of the police officer as frequent and unavoidable, always unpopular with some groups, usually resolved quickly, dealt with alone, and involving complex criteria. Police officers are trained in the law and they know departmental policy, but that still leaves a wide range of possible alternatives when arriving on any scene. Should they pull over a driver who forgot to signal? Should they ask a group of black youths clustered in a park entrance what they are doing? What should they do when a driver refuses to comply to an order to produce his license? An officer makes hundreds if not thousands of decisions a week. We discussed police officer discretion in the last chapter, but in this chapter, we will focus on discretion as it relates to three topics: race and ethnicity, the use of force, and investigative practices. Each of these topics has been the source of controversy.

Discretion and Discrimination

When individuals have discretion, individual prejudices and perceptions of groups such as women, minorities, and homosexuals can influence their decision making. Officers’ views of the world affect the way they do their job. If these views include prejudicial attitudes toward groups, and such prejudices affect decisions, those groups may not receive the same protections as “good” citizens. It is also true that we are all subject to implicit bias; subconscious biases that we are not even aware of but that may affect decision making (Staats, Capatosto, Wright, and Contractor, 2015). The point is not that police officers are more prejudiced than the rest of us; it is that their special position creates the possibility that their prejudices could cause a citizen to be treated differently than others. This becomes even more of a problem when the law enforcement agency’s occupational culture reinforces prejudicial views. Essentially, when police act on prejudices while performing their jobs, discrimination takes the form of either enforcing the law differentially or withholding the protections and benefits of the law. As the In the News box illustrates, some police officers may express extremely negative stereotypes of certain groups. Administrators cannot take the chance that such views may translate into differential enforcement of the law.

In this section, we will examine the evidence as to whether blacks are treated differentially, always with the recognition that one cannot discuss the 17,000 police agencies in the country as a monolithic unit. We will also focus specifically on racial profiling. Finally, we will examine the evidence as to whether blacks are more likely than whites to be shot by police officers.

A Racial Divide

Historically, law enforcement has been involved in slave patrols, enforcing white power in late-nineteenth-century and early-twentieth-century race riots, and, more recently, using the legal force inherent in the institution of law enforcement to intimidate and abuse civil rights protestors in the 1960s. It should also be strongly emphasized that the charge of racism is not limited to law enforcement, but rather has been leveled against the whole legal system. The system of laws and punishment, the courts that administer the laws, and the corrections system that makes decisions regarding the liberties of those convicted have all been described as agencies that systematically and pervasively discriminate against minority groups. Police, in this view, are just one element in systematic, even institutional, racism. The In the News box describes the Department of Justice report of Ferguson, Missouri, after the Michael Brown shooting, which details problems that go well beyond the police department.

Most studies indicate that blacks express more distrust of police than whites or Hispanics. In the latest Pew Research Center public opinion report (Morin and Stepler, 2016), there were dramatic differences between the perceptions of whites and blacks regarding police performance. Figure 6.1 shows the percentage of respondents who answered with “excellent” or “good” when asked how police do in the following areas:

· Protecting people from crime

· Using the right amount of force for each situation

· Treating racial and ethnic groups equally

· Holding officers accountable when misconduct occurs

The Pew study also showed that while 79 percent of blacks felt the recent shootings of blacks reflected a larger problem between police and the minority community, only 54 percent of whites felt the killings reflected a larger issue (Morin and Stepler, 2016). Hispanics generally fall between whites and blacks in their view of police. In another study, two in three Hispanics fear police use of excessive force, and 18 percent reported that they had friends or family members who had suffered police brutality (Planas, 2015).

Studies show that civil rights complaints against police are correlated positively to the percentage of minorities in the population (Holmes, 2000), that more than twice as many lower-class African Americans as whites report disrespectful language or swearing by police officers (Weitzer, 1999), and that middle-class African Americans express more negative attitudes than do lower-class African Americans (Weitzer, 1999). Age, income, sex, and education; living in metropolitan areas; and experiences with police all have been shown as influencing attitudes toward police; however, race remains a key variable even after controlling for other factors, arguably because blacks report having more negative interactions with police, are more likely to be exposed to negative media portrayals of police misconduct, and are more likely to live in high-crime areas where police employ a more combative style (Reisig and Parks, 2000; Weitzer and Tuch, 2004). Perceptions of police vary quite a bit between black populations in different cities (Sharp and Johnson, 2009).

The videos one sees on YouTube show terrible examples of police officers who are rude and abusive to the citizenry, but academic studies using observers indicate that residents (both black and white) are initially disrespectful to police three times as often as police are initially disrespectful to residents (15 percent compared to 5 percent). Factors associated with being disrespectful include heightened emotion, number of bystanders, presence of intoxicants, being mentally impaired, and being in a disadvantaged neighborhood (Engel et al., 2011; Mastrofski, Reisig, and McCluskey, 2002; Reisig et al., 2004).This research also showed that blacks were less likely than whites to experience initial police disrespect (Mastrofski, Reisig, and McCluskey, 2002). A more recent study, however, showed the opposite. In a study of the body cam video transcripts of 981 stops conducted by 245 Oakland officers in April 2014, researchers found that police were more likely to call white drivers “sir,” or “ma’am,” or to address them by a courtesy title and their last name. Black drivers were more likely to be addressed by their first name, or “bro,” “dude,” or “bud.” Disparities remained even after controlling for race of the officer, the location and the outcome of the stop, and the severity of the infraction. Researchers also found that officers were 57 percent more likely to offer an apology, to thank, or otherwise speak in what is considered a respectful way to white drivers than blacks. Black drivers were 61 percent more likely to be told to keep their hands on the steering wheel, or, in other ways, less respectful language was used. Researchers, who were linguists, noted that the officers in the study did not commit egregious acts of abuse or even swear at motorists; however, small differences in how officers spoke with the drivers reflected pervasive racial disparities (Voigt et al., 2017). Research indicates that police officers may not even realize when they are treating black community members insensitively, nor understand how their actions appear to minority residents (Whitehead, 2015).

If one perceives that a traffic stop or an order to move is discriminatory, being disrespectful or noncompliant may be the result. This might partially explain why studies show race as a predictor in the use of verbal and physical coercion by officers (Terrill, 2001; Terrill, Paoline, and Manning, 2003). Another study done in San Francisco covering the years 2010 to April 2015 showed that African Americans were cited for resisting arrest at a rate eight times higher than whites. The study reported that of 9,633 arrests for resisting, not accompanied by a felony, blacks (making up just 6 percent of the population) accounted for 45 percent of the arrests (Green, 2015).

Blacks are also more likely than whites to be arrested for small amounts of marijuana, at least in Charlotte, North Carolina, according to one study. Police have a choice to arrest or ticket, and in an investigation of two years of data, it was found that blacks were arrested 28 percent of the time compared to 10 percent of whites, leading to over 700 arrests of blacks compared to less than 100 arrest whites. Police argue that it may have been because blacks were more likely to be suspected dealers (Harrison, 2016).

It is also important to consider the effect of neighborhoods on how officers interact with those they encounter. Research shows that police employ a more guarded, forceful, and formal approach in high-crime neighborhoods (De Angelis and Wolf, 2016). Unfortunately, blacks are more likely to live in such neighborhoods and, thus, they are more likely to be treated as suspicious by police officers who are trained to respond to environmental cues to notice criminal activity and to stay safe.

African Americans are not the only minorities who are subject to differential enforcement patterns. Perhaps some of the most egregious cases of discriminatory law enforcement occur on this nation’s southern borders (Crank, 2003; Huspek, Martinez, and Jiminez, 2001; Romero, 2006). Huspek, Martinez, and Jiminez (2001) argued that border agents act this way because they are encouraged by the “rhetoric of fear” and tacit acceptance of any means necessary to reduce or discourage illegal immigration. Former Sheriff Arpaio in Maricopa County (Phoenix) was sued by the Department of Justice over his practices regarding the treatment of Hispanics in his jurisdiction. Investigators found that Hispanic drivers were four to nine times more likely to be stopped, and one-fifth of the traffic stops appeared to be unconstitutional. There was a general culture of bias against Hispanics, including the use of excessive force against Latinos, a reduction of policing services to the Latino community, and a gender and/or national origin bias by failing to adequately investigate sex crimes. The judicial ruling ordered cameras in every deputy’s car, increased data collection and reporting, a community advisory board, and a court-appointed monitor to ensure the agency is taking steps to prevent discrimination. In 2015, Arpaio was back in court facing civil contempt charges for violating the order after news reports emerged exposing at least one deputy who was arrested for “shaking down” illegal immigrants (Billeaud, 2015; Parvini, 2015). He settled that court case, but in 2017, was convicted of criminal contempt for the same defiance of the federal court order. His defense was that he didn’t understand it (Cassidy, 2017).

Some argue that disparate treatment of Hispanics has not gained the same attention among advocates as has allegations of discriminating against blacks because of the history and culture of Hispanics. They form a disperse group of different national origins, they have no national figureheads, and a large number are in this country illegally, and that tends to silence those who fear deportation (Rojas and Schmidt, 2016).

Racial Profiling

Racial profiling decision solely on the race/ethnicity of the other party (i.e., to stop and question or to conduct a traffic stop). occurs when a police officer makes a stop based entirely on race or ethnicity. Generally racial profiling refers to traffic stops based on race, leading to the use of the term “Driving While Black.” A “pretext stop” refers to the practice of police officers to use some minor traffic offense to stop the individual, specifically to look for other evidence of wrongdoing, usually by a consent search. The Supreme Court has upheld the legality of such stops in Whren v. U.S., 517 U.S. 806, 1996. In general, minorities are targeted because of a belief that they are more likely to be criminal. Racial profiling began when federal agents developed a profile of drug smugglers to assist border patrol and custom agents in airports. The list of indicators included travel patterns and behavior as well as demographic indices, such as race. The concept was expanded to highway drivers by state patrol officers who were attempting to stem the flow of drugs up through the interstates in Florida, Georgia, Texas, and other southern states (Crank, 2003; Harris, 2004). Observers contend that what eventually happened is that the behavioral and other indices of profiling were abandoned, so that decisions to target suspected drug-involved individuals were reduced purely to race. Racial profiling became known as the practice of officers stopping blacks for minor traffic violations, for example, failing to use a turn signal, to search the car for drugs.

Studies on racial profiling show that minorities may be stopped in numbers far greater than their proportion of the population would indicate however, the methodology of early racial profiling studies was problematic (Engel, Calnon, and Bernard, 2002; Smith and Alpert, 2002). Comparing stops to simply the percentage of population is not very accurate because it does not consider the percentage of nonwhite drivers, the percentage of nonwhite drivers who engage in traffic offenses, or the percentage of minorities in the geographic area that is being targeted by heavier patrols.

A Bureau of Justice Statistics study, utilizing an addendum to the National Crime Victimization survey, showed that more black drivers than white or Hispanic (13 percent versus 10 percent) were pulled over for traffic stops, but, interestingly, no difference existed for “street stops” (individuals stopped while walking). Blacks were less likely to believe that police acted appropriately in the stops. White drivers were searched and ticketed at a lower rate than black drivers (Langton and Durose, 2013). A recent study utilizing data from 132 different agencies in 16 states for a total of over 55 million traffic stops found dramatic racial differences in some jurisdictions. For instance, in one jurisdiction, blacks were seven times more likely to have their car searched than whites in a traffic stop. An important finding of this study was the disparity among jurisdictions—some showed more racial disparity than others and these patterns tended to be consistent over the years. Hispanics were also more likely to have their autos searched; in one jurisdiction, they were eight times more likely to be searched than whites. Researchers speculated one reason for the disparity might have been saturation patrols in minority neighborhoods (Baumgartner, Christiani, Epp, Roach, and Shoub, 2017; Hart, 2017).

In another study, researchers differentiated “traffic stops” and “investigatory stops,” a distinction made between police stops that occur because the driver commits a clear violation and those where the officer is using the stop for investigatory purposes. The first stop is short and results in a ticket; the second kind of stop is longer and always includes a request for a consent search. There is little racial difference in those stopped for the first type of search, but there is in the second type. In the study, 60 percent of all stops for whites were for traffic safety, versus 35 percent for blacks; however, 52 percent of all stops for blacks (versus 34 percent for whites) were for such minor reasons that the stop was coded as investigatory. In these types of searches, individuals are stopped for driving too slowly, broken lights, failure to signal, and other pretexts to initiate a search for drugs (Epp, Maynard-Moody, and Haider-Markel, 2014). The investigatory stop is proactive policing for crime (mostly drug) control. It is a cost/benefit question as to whether the benefit gained is worth the cost in the antipathy it generates among those who are stopped.

A New York Times study of stops of tens of thousands of traffic stops and arrests in North Carolina found racial differences: black motorists had their cars searched twice as often as whites, but contraband was found more often proportionally when whites were searched. Use of force was more common when the person stopped was black. Four times as many blacks as whites were arrested on a sole charge of resisting or obstructing an officer (LaFraniere and Lehren, 2015).

Studies are becoming more sophisticated. For instance, recognizing that in certain times of the day, the lack of light makes it difficult to identify the race/ethnicity of the driver, the so-called veil of darkness test looks at stops during those hours of the day compared to daylight hours to determine if there are differences in the percentages of whites and blacks stopped. These studies show clear racial differences. One troubling finding has been that, while many states have instituted detailed reporting practices to record drivers’ race and ethnicity for traffic stops, the disparity in stops has not changed much in some jurisdictions since the early 2000s (LaFraniere and Lehren, 2015).

In the news stories of racial profiling, there are egregious cases where black citizens have been treated extremely badly by police officers. Now that cellphone videos exist, it has made it easier for whites to understand why many blacks fear and distrust police. These cases are rare; however, even in cases where the police officer is polite, the perception of feeling discriminated against may affect the driver’s attitude and sometimes results in needless violence. Many of the shootings of black men in recent years have started with a traffic stop for a minor violation. Observers note that police officers could stop almost any driver because of the pervasiveness and complexity of traffic laws. Whether the officer does stop a driver, then, becomes, not just a legal decision, but an ethical one which we will analyze in the Ethical Dilemma box.

Another type of police stop is a “Terry stop” or investigatory detention. In Terry v. Ohio, 392 U.S. 1, 1968, the Supreme Court allowed officers to hold someone for a “reasonable” length of time when they encountered the person on the street and had a reasonable suspicion that there had been or was going to be a crime committed. The officer was also allowed to pat down or “frisk” the person for weapons to ensure the officer’s safety. This has led to a widespread practice of stopping individuals, generally young black males, in high crime neighborhoods or in housing developments because of the suspicion that they were involved in drug sales. While police view this as a reasonable approach to crime control, those stopped multiple times a week as they go about their business do not.

At the height of the stop-and-frisk practice in 2011, NYPD officers stopped 685,724 individuals under some type of investigatory detention. Civil liberties advocates complained bitterly that the stops were discriminatory since minorities were more likely to be stopped than whites without legal justification. This conclusion was reached because the officers’ stop cards that were supposed to detail the reasonable suspicion for the stop were often boilerplate, with no specific legal reason for the stop.

The stops were also unproductive since very seldom did the stop lead to the recovery of a weapon or an arrest. Only about 12 percent of stops led to arrests or citations (Rosenfeld and Fornango, 2017). Further, it harmed the relationship between the NYPD and the minority community. Empirical support that the increase in investigatory stops led to declining crime rates has been weak, other than “hot spot” research that shows crime drops temporarily when police blanket a neighborhood (Ferrandino, 2016); although, at least one empirical study did find a negative statistical relationship between crimes and number of stops in precinct areas (more stops led to less crime reports) (Rosenfeld and Fornango, 2017). The problem is the relationship between police practice, crime reports, and actual crimes is extremely complicated. What police do may decrease crime or it may simply decrease (or increase) the public’s willingness to report crime.

Because of a judicial order, the election of Bill DeBlassio, and the return of Bill Bratton as police commissioner, the stop-and-frisk practices of NYPD took a dramatic turn. Stops dropped 93 percent from 2011 to 2014 declining to 33,631 (Ferrandino, 2016). A report by the federal monitor of NYPD, released in May 2017, indicated that, in 2015, there were only 22,563 stops, and the stops were much more likely to lead to arrests than in prior years. His statistical analysis of stops between 2013 and 2015 showed that racial disparity in stops decreased, but didn’t disappear. This study examined number of stops per census districts similar in crime and determined that there were still differences in the numbers of stops of blacks and Hispanics as compared to whites, but the disparity was much less (Baker, 2017). Despite dire warnings that such a dramatic reduction would lead to increased crime, New York City is not one of the cities that has experienced dramatic spikes in homicide or violent crime in recent years. There is a real question, then, whether frequent stops based on suspicion, provide enough efficacy to overcome the equity concerns of those stopped.

The experience of New York should be instructional for other cities who are also facing scrutiny over stop-and-frisk practices. Milwaukee, for instance, has been sued by the ACLU for what is alleged to be a pattern of discriminatory stops. In supporting documents, it was shown that from 2007 to 2015, the number of arrests declined from 37,217 to 23,059, but the number of investigatory stops increased 228 percent from 14,258 to 46,830. What is as interesting, however, is the number of traffic stops increased 186 percent from 52,339 to 149,604, lending apparent support for critics who argue that police have increasingly been used as revenue producers for cities and local jurisdictions (Barton and Luthern, 2017).

Evidence indicates that racial profiling (either through traffic stops or investigatory stops) doesn’t occur necessarily because officers are racist. It is an entrenched part of policing because there is a suspicion of black men held by white and black police officers, combined with the pressure to conduct investigatory stops to obtain drugs and other contraband. This pattern of enforcement may lead to a script of resistance and “disrespect” on the part of those stopped, which, in turn, incites some officers to ratchet up the force used so that a simple stop ends up in a resisting arrest charge, or, worse—the use of lethal force (Bouie, 2014, 2015). In the In the News box, the killings of black men all began with a simple traffic stop.

Police Shootings of Blacks

The killings of Alton Sterling, Philando Castile, Laquan MacDonald, and Walter Scott reinforce the perception that black men are unfairly and needlessly killed by police officers. Statistics do indicate black men are disproportionately the victims of police shootings. In a Washington Post analysis of shootings, blacks were shot at 2.5 times the rate of whites (Kindy, Lowery, Rich, and Tate, 2016). Of course, shootings are not randomly distributed across the population. The explanation that blacks are shot more often because they are disproportionately involved in violent crime or that they are disproportionately more likely to assault police officers (both true to some extent) explains this disproportional reality only partially (Bowes, 2015). From what we know, police shootings are more likely to occur in certain areas of the city, and these areas are more likely to be minority neighborhoods; thus, it may be that both whites and blacks are equally likely to be the targets of police shootings if they lived in the same high crime areas.

It is possible that police officers are more likely to perceive blacks as a greater threat, even controlling for other elements of the situation. Evidence for this lies only in anecdotal data from open-carry states, where white men seem to be able to approach officers carrying visible weapons without raising the officers’ alarm compared to incidents where minority children are shot for having toy guns (Tamir Rice, Andy Lopez), and black men are shot merely for holding a gun that is merchandise in a store (John Crawford III) (Jonsson, 2014; Wines, 2014).

Laboratory findings are mixed. Some research shows that police officers participating in a shoot/don’t shoot scenario were slower to shoot when the suspect was black than when the suspect was white. These results indicate that police officers are aware of and compensate for bias, although it is possible that the findings are an artifact of the research itself (James, Vila, and Daratha, 2014). The implicit bias studies conducted at the Kirwan Institute for the Study of Race and Ethnicity at Ohio State University have been accumulating research findings for years showing how implicit bias affects perceptions of and probably actions toward members of minority groups. Even if police officers can control cognitive biases in a laboratory setting, findings also show that cognitive control is impeded by fatigue, fear, and high arousal, thus their actions may be different on the street (Correll, Hudson, Guillermo, and Ma, 2014).

One recent study utilized:

(1) the NYPD’s records of 5 million stop-and-frisk events,

(2) the Police–Public Contact Survey, a nationally representative sample of civilians,

(3)event summaries from all incidents in which an officer discharges his weapon at civilians including both hits and misses from three large cities in Texas (Austin, Dallas, and Houston), six large Florida counties, and Los Angeles County, and

(4) a random sample of police–civilian interactions from the Houston police department from arrest codes in which lethal force is more likely to be justified.

The study found that the race of the suspect did not influence the likelihood of fatal shootings by police. However, blacks and Hispanics were 50 percent more likely than whites to be the targets of all other uses of force. The study has been criticized because much of the primary data used comes from police officer reports, with the assumption that the accuracy of the reports would favor the report writer. Since the data also provided an observed differential use of force in less-than-lethal situations, the assumption that the findings do not accurately represent reality is less persuasive (Fryer, 2016).

To understand whether there is racial bias in officers’ decisions to shoot, it is important to have all the facts. Unfortunately, we do not have accurate national statistics. Police departments are not required to report shootings to any central database. It is very important to have a base number (of all shootings) before we can understand the factors that affect the decision to shoot. It would be even more beneficial to have data regarding all the situations where an officer was legally allowed to shoot and did not. Unfortunately, that type of data will never be available; that is why researchers use shoot–don’t shoot scenarios in a laboratory setting. The media stories of black men shot by police in the last several years do illustrate a problem of race relations we cannot ignore, but it is also important to remember that these media stories are a distorted reality because we do not know of all the other shootings (of black, Hispanic, and white men and women) that have taken place.

More importantly, we have no way of knowing anything about the many unknown situations where officers had a legal authority to shoot and chose not to. It is not a good comparison to simply look at percentage of population figures when evaluating whether there is a racial component to police officer decisions to shoot because the individuals involved do not occur randomly across the population. Most police killings involve individuals who are engaged in criminal or at least suspicious activity.

In about 80 percent of all police shootings, the suspect is armed (Kindy, 2015; Philly.com, 2014). The most negative reports in the media describe truly horrible situations, such as the Walter Scott shooting, but these tragic incidences should not be conflated to represent all police shootings, because they are not representative.

The decision to shoot is often made in a split second, sometimes in the heat of a struggle, or in the presence of uncontrolled fear. Officers should never feel so afraid of being punished for using their weapon that they do not make the correct decision to protect themselves or others; neither should they ignore the very real possibility that implicit bias makes them see black males differently … even 14 year olds who have a toy gun, or compliant young men who are simply reaching into the car for their license.

Discretion and the Use of Force

Police have an uncontested right to use force when necessary to apprehend and/or subdue any suspect of a crime. They have a right to use lethal force only if they believe that the suspect poses a threat to the officer or others (Tennessee v. Garner, 471 U.S. 1105, 1985). When their use of force exceeds that which is reasonably necessary to accomplish their lawful purpose, it is defined as excessive force and is unethical and illegal (Graham v. Connor, 490 U.S. 386, 1989). Under the Supreme Court holding from this case, officers have the right to use “reasonable” force in any interaction with the public, as determined by the facts and circumstances. They are not obligated to use the least possible force. They can use any level of force that would be used by a reasonable officer in the same situation.

In this section, we will first discuss the absence of an accurate national databank on police-caused fatalities or any national source of use-of-force statistics. Next, a review of research identifying factors involved in the use of force (of the target, situation, and officer) will be offered. A special section on Tasers focuses on the use of that device. Finally, current approaches to reduce the number of police shootings will be reviewed.

Probably the most well-known use-of-force incident in this country was that by law enforcement officers against Rodney King, revealed by the amateur video and widely disseminated. This can still be seen on YouTube even though the event occurred in 1991. In the Rodney King incident, an initial act of passing a police vehicle and leading officers in a chase led to the involvement of 12 police cars, one helicopter, and up to 27 officers. The incident resulted in King being struck at least 56 times, with 11 skull fractures, a broken cheekbone, a fractured eye socket, a broken ankle, missing teeth, kidney damage, external burns, and permanent brain damage (Kappeler, Sluder, and Alpert, 1994).

The King incident is an example of lawful force or excessive force, depending on one’s perception. In the video, King clearly continued to try to rise and the officers continued to use their conducted energy devices (CEDs), kick, and hit him with their batons. Some argue that the officers continued to hit him because he continued to resist; others argue that he continued to resist because he was disoriented and was trying to escape the injuries being inflicted upon him. LAPD policy interpreted reasonable force as proportional to the level of resistance; however, that leaves a large area of discretion for the individual officer. It is for this reason, that use of force is a legal issue, a policy and training issue, and, also, an issue of ethics.

What We Know and Don’t Know

As stated before, the events in Ferguson, North Charleston, Chicago, and Baltimore brought a great deal of public scrutiny to police use of deadly force. Many were surprised to find that there is no good national statistic as to how many people are killed by police each year, and certainly we have no way to know how many people are shot each year by police and do not die. Nor is there any national database of other nonlethal uses of force.

The supplemental homicide reports provided by the FBI include a category of justifiable homicide (a legal killing almost always performed by a law enforcement officer). However, it has been known for quite some time that the number reported is a woeful undercount of the true number of homicides because police departments are not obligated to provide statistics (Hickman, Piquero, and Garner, 2008). Klinger (2012) compared internal reports from the Los Angeles Police Department to FBI numbers and found that the 184 homicides by police in the FBI report was 46 percent lower than the 340 uncovered in internal reports.

The FBI reports show that the number of individuals killed by police has been increasing even while the crime rate has declined. According to official reports, officer-involved killings averaged in the 400s in the last decade or so (reported in Schmidt, 2015). This compares to averages in the 200s in the 1960s–1970s and an average of 350 in the 1980s to early 2000s. Independent estimates of the number of recent killings based on other sources put the average number per year at double the official number and closer to 1,000 (Wines and Cohen, 2015). This disparity in numbers is troubling and it does make any longitudinal comparisons impossible because the explanation for the increasing numbers reflected in the FBI report may be simply that more incidents are being formally reported (Johnson, 2014).

In 1994, the Violent Crime Control and Law Enforcement Act was passed requiring the attorney general to acquire data about the use of excessive force by law enforcement officers and publish yearly reports. The annual reports required by Congress in the 1994 law were never produced (Doyle, 2014b). Estimates of the use of force come from other sources, such as the Police–Public Contact Survey and single city studies (Hickman, Piquero, and Garner, 2008).

It is also important to note that these are raw numbers, not rates per 1,000. Obviously, the population of the country is greater in recent years than in past decades; therefore, one cannot compare across time logically without constructing a rate that takes the population base into consideration. Even if rates are computed, it doesn’t tell us much because we don’t know if there are more people with guns. Recall that most of those killed by police are armed. In some studies, it has been found that at least 80 percent of individuals killed had weapons (reported in Kindy, 2015; Philly.com, 2014). If there are more guns in society, there will be more incidents where officers feel threatened. It is also important to note that officers strongly object to criticism that the shooting is unjustified if the subject was unarmed, because if the assailant physically attacks the officer, he may wrestle the officer’s gun away and use it against the officer. Thus, any physical altercation could turn deadly because of the presence of the officer’s firearm. It is possible that officers are increasingly facing suspects who physically attack them. In short, we don’t really know whether shootings are an increasing problem or not.

There are major efforts underway to obtain better statistics. Some states have pursued legislation to require police departments to report shooting data to a central source. Several other organizations, such as the American Bar Association, have announced they are constructing databanks of shootings.

Factors in the Use of Force

The most important thing to know is that use of force seems to be present in a very small percentage of the total encounters between police and citizens and excessive force (force not justified by law or policy) occurs in less than 1 percent of interactions with the public. Second, research indicates that a small percentage of officers seem to be responsible for a disproportionate percentage of the force incidents. Finally, some studies do find an association between force and race or socioeconomic status, but other factors, such as demeanor, seem to be even more influential.

A Bureau of Justice Statistics (BJS) study reported that force was used in about 1.6 percent of all police–citizen interactions (Ducrose, Langan, and Smith, 2007). However, use of force seems to vary depending on the city. Garner, Maxwell, and Heraux (2002) found in their study that use of force ranged from 12.7 percent of encounters in one city to 22.9 percent of encounters in another city. In addition, a national survey of law enforcement agencies found that the rate of use-of-force events varied by region, with the highest in the South (90 incidents per 100,000), followed by the Northeast (72), the Midwest (68), and the West (50) (Terrill, 2005). It is also important to note that the figures above are describing use of force, not excessive force. Excessive force is estimated to occur in a miniscule portion of total encounters with the public—estimated at one-third of 1 percent (Micucci and Gomme, 2005).

Characteristics of the target that seem to be correlated with use of force include race, sex (male), disrespectful demeanor, emotionality, mental illness, intoxication, presence or perception of a weapon, the suspect’s violent criminal record (knowledge of), suspect’s use of force, gang membership, and socioeconomic status.

Situational characteristics correlated with the use of force include the number of citizens present (positive association), the number of police officers present (positive association), and whether the encounter involved a car or foot pursuit.

Characteristics of the officers involved in use of force include sex (male), age (younger), and ethnicity (being Hispanic). Psychological traits of the officer have been identified as well, including lack of empathy, antisocial and paranoid tendencies, inability to learn from experience, a tendency not to take responsibility for actions, and cynicism. Officers who use force have also been found to have a stronger identification with the police subculture. Another factor in the tendency to use force was being involved in a traumatic event or prior injury (thus, use of force would be a type of posttraumatic stress behavior; Alpert and Dunham, 2004; Alpert and MacDonald, 2001; Garner, Maxwell, and Heraux, 2002; Terrill and Mastrofsky, 2002; Terrill, Paoline, and Manning, 2003).

It should be emphasized that these studies and the factors identified are associated with the use of force, not necessarily excessive force. Even though force is rare in terms of the percentage of times used of the total number of interactions between police and citizens, that does not mean it is not a problem. In past research, surveys of officers indicated that up to a quarter of officers have at least “sometimes” used more force than necessary (Weisburd and Greenspan, 2000). Even one video of excessive force can poison the relationship between a police department and its citizenry.

Use of Tasers (CEDs)

The Taser is one type of conducted energy device (CED), but the word Taser has come to be used in common language to refer to any CED. The devices use electrical stimuli to interfere with the body’s nervous system, impairing the muscular control of the target. It has been introduced with the hope that using it as an alternative to lethal force could save lives.

Generally, research indicates that CEDs seem to be associated with a decrease in the number of deaths of suspects, a decrease in the number of injuries to suspects, and a decrease in the number of injuries to officers (Dart, 2004; National Institute of Justice, 2008; White and Ready, 2009; Williams, 2010, 2013). Supporters allege that CEDs are safe in most cases and are potentially dangerous only when there is some underlying medical condition. One study found that death was more likely in cases where the target was under the influence of drugs or mentally ill and when the device was used more than once (White and Ready, 2009); another study found evidence that high risk groups (drug intoxicated or those experiencing excited delirium) were vulnerable (Williams, 2013).

The International Association of Chiefs of Police recommends that a CED not be used on juveniles, the elderly, or pregnant women, and should not be used repeatedly or by multiple officers. Other police groups promote guidelines that prohibit the use of Tasers when a subject is merely verbally noncompliant, is handcuffed, or is intoxicated or has a clear medical condition. There are no consistent national policies, however, and some agencies ignore some or all the proposed guidelines. CEDs have been used on “schoolchildren,” the “mentally disturbed or intoxicated,” the extremely obese who can’t comply with officers’ orders, and individuals who are verbally combative with police (Amnesty International, 2007). There are no good numbers indicating how many people have died because of CED use because medical examiners simply do not know the contributing factor of the electrical charge in any fatality as compared to drug intoxication, a heart condition, or some other medical condition. It has also been noted that Taser International has sued medical examiners who have listed the CED as a cause of death and have aggressively funded research that shows no association between CED use and death (Laughland, Lartey, and McCarthy, 2015). The potential for injuries from the CED is possibly underestimated, certainly by those who sell it, such as Taser International (Laughland, Lartey, and McCarthy, 2015; Montemayor, 2016; Terrill and Paoline, 2011).

In December 2009, the Ninth Circuit Court of Appeals ruled that a police officer could be held liable when a CED is used on a person who poses no immediate threat (Bryan v. McPherson, 590 F.3d 767, 2009). There have been hundreds of federal lawsuits against municipalities for alleged abuses (Cook, 2014; O’Brien, 2013; Plohetski and Dexheimer, 2012).

CED use, like use of force in general, varies dramatically from city to city. It was reported that in North Charleston (where Walter Scott was shot in the back by ex-officer Michael Slager in the spring of 2015) Tasers were employed 825 times from 2010 to 2014. In Tyler, Texas, a city about the same size but with 150 fewer officers, Tasers were used only 65 times. North Charleston has faced several lawsuits from Taser use, including incidents involving Slager (Binder, Fernandez, and Mueller, 2015).

Departmental policies play a role in CED use, with those departments having flexible or vague policies also being the ones with more use of CEDs by officers. Like any use of force, CEDs can play an important role in law enforcement and are certainly a preferred alternative to lethal force; however, it is possible that they should be moved up the continuum of force in training to equate to close-to-lethal force options.

Responses to Uses of Force

It is inevitable that police officers will need to use some level of force in response to noncompliant and resisting suspects. In almost all cases, their actions are supported by the law and policy. Cases where officers’ uses of force meet the definition of a crime are extremely rare. In most cases of lethal and nonlethal uses of force, officers are not indicted or charged (and in most cases, rightfully so). A major report from South Carolina showed that officers fired at 209 suspects in the last five years, killing 79, but only 3 were accused of misconduct, and no officer has ever been convicted of any crime (LeBlanc, 2015). An investigation by a newspaper in New York City found that at least 179 people were killed by on-duty NYPD officers (and 43 by off-duty officers) over the past 15 years, and just three of the deaths led to an indictment in state court (but 10 of the off-duty killings led to convictions) (Marzulli and Gregorian, 2014). In a Washington Post analysis of police shootings, despite the thousands of fatal shootings by police since 2005, only 54 officers were charged, and most were cleared or acquitted in the cases that have been resolved (Fisher, Higham, and Hawkins, 2015). The reason officers who are charged are usually acquitted is that juries must decide beyond a reasonable doubt that the officer was not in fear of his life in order to find him guilty of any crime. If the officer testifies that he or she was in fear of imminent death or grievous injury, it is difficult for the prosecutor to disprove that fear unless other proof exists that there clearly was no cause for such fear.

One would expect that most officers shoot only in those situations where they are legally justified, therefore, there should be few, if any, prosecutions of officers for their use of force. However, some argue that prosecutors are unwilling to pursue charges against officers because of the close working arrangements between prosecutors and police officers and/or that police cannot conduct such investigations fairly and objectively. Juries are also unlikely to believe that officers would use illegal force. Recently, officers have been more likely to be charged or indicted for shootings or other uses of force that result in serious injury; for instance, 18 were charged in 2015 with murder or manslaughter compared to an average of 5 in the years before (Friedersdorf, 2015; Simpson, 2015; Wing, 2015).

Civil suits are more likely to be successful than criminal prosecutions. The reason is that the level of proof necessary to show legal liability is lower. Also, suits are often settled by cities before even reaching trial. Supporters of police argue that cases are inappropriately settled since the officer did nothing wrong. No good case analysis exists to explore this question, especially since such settlements often have gag orders attached to them prohibiting either side from disclosing any information. The amount of money paid by taxpayers to settle these suits is staggering. For instance, according to one estimate, over $1 billion has been paid out in the last five years, with the yearly total increasing annually (Wing, 2015).

Officers may not be criminally charged, but might still face discipline for violating policy. The reason is that although an officer may have been compelled to utilize lethal or nonlethal force given the resistance or threat presented by the suspect, the officer may have created the situation by not attempting to deescalate or may have violated policy by, perhaps, not waiting for back-up before engaging. These officers may be disciplined or even fired.

Recently, the Department of Justice has become more aggressive in investigating and identifying problematic use-of-force patterns in several cities. More than 20 cities have been the target of DOJ attention. A federal investigation typically ends with either a judicially approved consent decreeconsent decreeA legal agreement between the Justice Department and a police department whereby the police department agrees to perform specified activities and submit to monitoring to ensure that the department meets the terms of the agreement to avoid a lawsuit or joint memorandums of agreement that detail a range of changes the department must complete. One recent DOJ investigation and report targeted Baltimore. Review of all uses of deadly force between 2010 and 2016 and a sample of nondeadly uses of force led to a conclusion that there was a pattern of the use of excessive force. DOJ investigators pointed to deficiencies in BPD’s policies, training, and oversight of officers’ force incidents. The report indicated that officers unnecessarily escalated encounters and frequently resorted to physical force in response to noncompliance, even in cases of no imminent threat to the officer or others. Another finding was that due to a lack of training and improper tactics, individuals with mental health issues were often dealt with using physical force. BPD officers were also criticized for using force on restrained individuals and those fleeing who were not suspected of violent crimes (USDOJ, 2016). An investigation and review of Philadelphia shootings resulted in findings that indicated that officers did not receive consistent basic or in-service training on firearm use, received little or no deescalation training, did not experience reality-based training, and the shooting after-review process focused only on policy to the exclusion of officer decision-making or tactics (Fachner and Carter, 2015) Seattle, Los Angeles, New Orleans, Phoenix, Ferguson, Baltimore, and Chicago have all been investigated by the Department of Justice. In these investigations, use of force is one of the elements of concern, with findings often including: failure to implement a use-of-force policy, failure to train, failure to monitor, failure to adequately investigate, and/or failure to discipline. Generally, such investigations point to the culture of force, lack of training, lack of clear, coherent use-of-force policies, and lack of discipline as contributing to systemic problems. We will discuss consent decrees in more detail in the next chapter.

Recently, a small set of law enforcement officials have called for new approaches in training and a renewed emphasis on how to defuse situations to avoid the use of force. It has been reported that 58 hours of training is given to recruits in the use of firearms and 49 hours in defensive tactics, but only 8 hours in deescalation techniques (Apuzzo, 2015). The Police Executive Research Forum (PERF), comprised of former law enforcement officers, seeks to increase the training emphasis on deescalation and presented a set of guidelines or principles that included

· prohibiting firing into a moving car;

· using deescalation strategies before resorting to force;

· abandoning the so-called 21 feet rule that advised shooting a suspect with a knife if he came within 21 feet because of the perceived likelihood that the officer could be fatally injured; and

· administering first aid immediately, even taking the shooting target to the hospital immediately without waiting for an ambulance (Baker, 2016)

PERF evidently borrowed many of the proposals from existing practices in departments around the country. The group noted that in 1972, New York City police officers shot 994 people; however, they changed the rules regarding force and in 2014, only 79 were shot by NYPD officers. Despite acceptance from some city police chiefs and sheriffs, there was also strong resistance. The Fraternal Order of Police and the International Association of Chiefs of Police issued a joint statement denouncing the proposed principles, arguing that they were out-of-touch with the officers on the street. Critics pointed to Supreme Court cases that allowed police to shoot into moving vehicles (Mullenix v. Luna, 136 S. Ct. 305, 2015; Plumhoff v. Rickard, 134 S. Ct. 2012, 2014). They argue that the negative narrative of policing is perception, not reality, and that hard rules for use-of-force leave officers in untenable situations (Jackman, 2016).

Another factor in use of force patterns is whether policies are enforced and officers are disciplined. News reports of incidents paint a troubling picture across the country of officers who have multiple uses-of-force complaints and receive little if any punishment. One has only to track the cases documented in videos on Youtube.com or the Cato Institute’s website documenting police misconduct to see that some departments “wink” at excessive force by a few individual officers. One report indicated that out of 10,000 abuse complaints in Chicago between 2002 and 2014, only 19 resulted in any discipline (Kristian, 2014).

Some evidence indicates that police departments can change their level of use of force by changing policies. The District of Columbia, for instance, after being put under a court order with a monitor, went from 32 police shootings (with 12 deaths) in 1998 to only 17 in 2001 with 3 deaths (C. Murphy, 2002). Alpert and MacDonald (2001) found that agencies that required supervisors to fill out use-of-force forms had lower levels of use of force than did agencies that allowed officers to fill out their own forms. Baltimore police cut their use of Tasers nearly in half in 2016 when commanders put new limits on when officers can fire the stun guns, officials said (Donovan, 2017)

Whether it be lethal force, a Taser, or physical blows, officers have been given the discretion to employ force that, if performed by citizens, would be illegal. We expect them to use such power wisely, and they have a legal duty to do so—that is, they must make reasonable decisions based on the facts and circumstances of each case. Officers are trained in the law and departmental policies, but individual discretion determines reasonableness. Further, as we have discussed, sometimes what officers have a legal right to do may not be wise or ethical, given other alternatives. There are those “lawful but awful” cases where the use of force was ruled legal, but it was either a grievous mistake on the part of the officer in his or her perception of danger or the situation was created by the officer’s actions, thus the use of force might have been avoided. Police officers do not have a choice—they must carry a gun and they must be prepared to use it. In some situations, young, inexperienced, or psychologically unprepared officers shoot in situations where there is no reasonable perception of threat. They have ended up in jail or lost their career. In very few cases, officers may have a predilection to use force, even deadly force, and have not been controlled by their department. Why many other police officers react so defensively to criticism of these cases, perhaps, is because, even in these situations, the officer does not have a goal to go out and kill someone; they are doing their job which is sometimes a very dangerous job and one that most of us do not want. In the same way that doctors sometimes through negligence, oversight, or simple mistake, kill their patients; officers do too. In the same way that doctors are rarely charged with criminal negligence because the bar is set very high for criminal culpability, but often pay civil damages, officers do too. One last point to be made is that most officers are devastated when they use lethal force. This trauma is exacerbated when mistakes are made, as the following Walking the Walk box shows.