U.S. COMMISSION ON CIVIL RIGHTS

NOVEMBER 2018

BRIEFING

REPORT

POLICE USE OF FORCE:

AN EXAMINATION OF MODERN

POLICING PRACTICES

U.S. COMMISSION ON CIVIL RIGHTS

Washington, DC 20425

Official Business

Penalty for Private Use $300

Visit us on the Web: www.usccr.gov
U.S. COMMISSION ON CIVIL RIGHTS

The U.S. Commission on Civil Rights is an independent, 

bipartisan agency established by Congress in 1957. It is 

directed to:

• Investigate complaints alleging that citizens are 

being deprived of their right to vote by reason of their 

race, color, religion, sex, age, disability, or national 

origin, or by reason of fraudulent practices.

• Study and collect information relating to discrimination or a 

denial of equal protection of the laws under the Constitution 

because of race, color, religion, sex, age, disability, or 

national origin, or in the administration of justice.

• Appraise federal laws and policies with respect to 

discrimination or denial of equal protection of the laws 

because of race, color, religion, sex, age, disability, or 

national origin, or in the administration of justice.

• Serve as a national clearinghouse for information 

in respect to discrimination or denial of equal 

protection of the laws because of race, color, 

religion, sex, age, disability, or national origin.

• Submit reports, findings, and recommendations 

to the President and Congress.

• Issue public service announcements to discourage 

discrimination or denial of equal protection of the laws.1

MEMBERS OF THE COMMISSION

Catherine E. Lhamon, Chair

Patricia Timmons-Goodson, Vice Chair

Debo P. Adegbile*

Gail Heriot

Peter N. Kirsanow

David Kladney

Karen K. Narasaki

Michael Yaki

Mauro Morales, Staff Director

U.S. Commission on Civil Rights

1331 Pennsylvania Avenue, NW

Washington, DC 20425

(202) 376-8128 voice

TTY Relay: 711

www.usccr.gov

1 42 U.S.C. §1975a.

*Denotes Commissioner’s recusal from the report.
Police Use of Force: An 

 Examination of Modern 

 Policing Practices 

Briefing Before 

The United States Commission on Civil Rights 

Held in Washington, DC 

Briefing Report 

 
[This page intentionally left blank] 
Letter of Transmittal 

November 15, 2018 

President Donald J. Trump 

Vice President Mike Pence 

Speaker of the House Paul Ryan 

On behalf of the United States Commission on Civil Rights (“the Commission”), I am pleased to 

transmit our briefing report, Police Use of Force: An Examination of Modern Policing Practices. 

The report is also available in full on the Commission’s website at www.usccr.gov. 

In this report, the Commission investigated rates of police use of force; whether rates and 

instantiations of that use of force violate civil rights of persons of color, persons with disabilities, 

LGBT communities, and low-income persons; promising or proven policies and practices worth 

replicating to minimize unnecessary use of force; and the perception and reality of discrimination 

in police use of force. The Commission considered evidence from law enforcement and court 

officials, community leaders and police reform advocates, scholars, legal experts, as well as 

testimony taken in by the Commission’s State Advisory Committees in Minnesota, New York, 

Maine, and Delaware. 

The Commission majority approved key findings including the following: While police officers 

have the difficult and admirable job of providing crucial services to the communities they protect 

and serve, their job sometimes puts them in harm’s way and may require the use of force. 

Accordingly, police officers must operate with the highest standards of professionalism and 

accountability. Every community resident should be able to live, work, and travel confident in an 

expectation that interactions with police officers will be fair, consistent with constitutional norms, 

and guided by public safety free from bias or discrimination. Unfortunately, too many communities 

are not confident in these expectations, and so these communities have called for reforms to foster 

better community-police relations and prevent unjustified and excessive police uses of force. 

Accurate and comprehensive data regarding police uses of force is generally not available to police 

departments or the American public. No comprehensive national database exists that captures 

police uses of force. The best available evidence reflects high rates of uses of force nationally, 

with increased likelihood of police use of force against people of color, people with disabilities, 

LGBT people, people with mental health concerns, people with low incomes, and those at the 

intersection of these communities. Lack of sufficient training—and funding for training—leaves 

UNITED STATES COMMISSION ON CIVIL RIGHTS

1331 Pennsylvania Ave., NW  Suite 1150  Washington, DC 20425 www.usccr.gov
officers and the public at risk. Repeated and highly publicized incidents of police use of force 

against persons of color and people with disabilities, combined with a lack of accurate data, lack 

of transparency about policies and practices in place governing use of force, and lack of 

accountability for noncompliance foster a perception that police use of force in communities of 

color and the disability community is unchecked, unlawful, and unsafe. 

The Commission majority voted for key recommendations, including that the United States 

Department of Justice should return to vigorous enforcement of constitutional policing, including 

under its authority pursuant to 42 U.S.C. § 14141, and the use of consent decrees where necessary 

to ensure that constitutional policing standards are upheld. The Department of Justice should 

robustly support local efforts to develop and institute constitutional policing practices, including 

through the Office of Community Oriented Policing Services (COPS) and maintaining the 

Community Relations Service (CRS) to focus on building community trust and reducing excessive 

or unauthorized uses of force, in coordination with police departments. 

The Commission majority also called on Congress to fund grants, facilitated by the Department of 

Justice, to incentive evidence-based practices that, when employed, reduce incidents of excessive 

or unauthorized force. These practices may include increased training on de-escalation tactics and 

alternatives to use of force. Congress should also fund grants that support effective external police 

oversight and research regarding best practices for such oversight. 

The Commission majority called for practical reforms to stem the tide of perceived conflict 

between police officers and their communities, and to recommit this nation to the principles of 

fairness and equal treatment, including at the hands of police, that are core to democracy. These 

recommendations for forward progress are measured, appropriate, and urgent; our nation’s 

communities need their implementation. 

We at the Commission are pleased to share our views, informed by careful research and 

investigation as well as civil rights expertise, to help ensure that all Americans enjoy civil rights 

protections to which we are entitled. 

For the Commission, 

Catherine E. Lhamon 

Chair 
Table of Contents i 

TABLE OF CONTENTS 

TABLE OF CONTENTS ................................................................................................................. i

ACKNOWLEDGEMENTS ........................................................................................................... iii

EXECUTIVE SUMMARY ............................................................................................................ 1

Highlighted Findings: ................................................................................................................. 3

Highlighted Recommendations: .................................................................................................. 4

Chapter 1: Introduction: Definitions, Data, and Major Theoretical Perspectives .......................... 7

Defining Excessive Use of Force ................................................................................................ 9

State of National Data Collection ............................................................................................. 12

Existing Data on Lethal and Non-Lethal Use of Force ......................................................... 21

Disparities in Use of Force ................................................................................................... 22

Explanations for and Analysis of Rates of Police Use of Force ............................................... 25

Inevitability Argument .......................................................................................................... 26

Systemic Perspectives ........................................................................................................... 41

Chapter 2: Police Oversight And Accountability ........................................................................ 55

Internal Accountability ............................................................................................................. 55

Body-Worn Cameras ............................................................................................................ 63

External Oversight .................................................................................................................... 73

Civilian Review Boards ........................................................................................................ 74

Grand Juries .......................................................................................................................... 78

Qualified Immunity ............................................................................................................... 82

Consent Decrees.................................................................................................................... 86

Chapter 3: Changing Law Enforcement Behavior ....................................................................... 97

A Holistic Approach to Reforming the Overall Policing System ............................................. 97

Racial Diversity ........................................................................................................................ 99

Training ................................................................................................................................... 101

Implicit Bias Training ......................................................................................................... 103

De-escalation Training ........................................................................................................ 113

Mental Health and Disability Training ............................................................................... 126

Building Community Trust ..................................................................................................... 131
ii Police Use of Force 

Chapter 4: Findings and Recommendations .............................................................................. 137

Findings................................................................................................................................... 137

Community Trust ................................................................................................................ 137

Data ..................................................................................................................................... 137

Training ............................................................................................................................... 138

Accountability ..................................................................................................................... 138

Recommendations ............................................................................................................... 139

Commissioners’ Statements, Rebuttals, and Surrebuttals ........................................................... 143

Statement of Chair Catherine E. Lhamon ............................................................................... 143

Statement of Vice Chair Patricia Timmons-Goodson ............................................................ 147

Statement of David Kladney ................................................................................................... 153

Statement of Commissioner Karen K. Narasaki ..................................................................... 171

Statement of Commissioner Gail Heriot ................................................................................. 181

Dissenting Statement of Commissioner Peter Kirsanow ........................................................ 197

Rebuttal of Commissioner David Kladney ............................................................................. 218
 Acknowledgements iii 

ACKNOWLEDGEMENTS 

The Office of Civil Rights Evaluation (OCRE) produced the final version of this report under the 

direction of Katherine Culliton-González, Esq, OCRE Director. Dr. Marik Xavier-Brier, Civil 

Rights Analyst, performed principal research and writing. 

Interns Madison Hubbard, Michigan State University, Krista Painter, University of Texas, Sabrina 

Escalera-Flexhaug, American University, Washington College of Law, and Aaron Hurd, Indiana 

University, Maurer School of Law also provided valuable research and legal assistance. 

Commissioners and Commissioner Special Assistants Sheryl Cozart, Jason Lagria, Carissa 

Mulder, Amy Royce, Rukku Singla, and Alison Somin conducted research, edited, and examined 

the report. 

 

The Commission’s General Counsel Maureen Rudolph reviewed and approved the report for legal 

sufficiency. 

State Advisory Committees in Delaware, Maine, Minnesota, and New York collected and provided 

testimony, findings, and recommendations to the Commission on policing issues with their 

jurisdictions. 

 
iv Police Use of Force 

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Executive Summary 1 

EXECUTIVE SUMMARY 

The relationship between law enforcement and many communities in the U.S. is fraught and 

challenging, particularly for those who experience violent crimes coupled with intensive police 

presence and surveillance. A number of recent developments suggest a renewed commitment to 

resolving this issue. For the first time in decades, the country has witnessed ubiquitous and 

sustained protests by young people, communities of color, and other impacted populations in cities 

all across the country.1 Further, in hope of fostering better community-police relationships, many 

law enforcement and city officials around the country have started implementing reform strategies 

to allay communities’ concerns about actual or perceived unfair and unequal policing. Reform 

advocates often acknowledge the positive steps that some jurisdictions are undertaking, but 

reported cases of excessive force remain a national concern.2

 Furthermore, the Bill of Rights of 

the U.S. Constitution guarantees the fundamental rights of both law enforcement and the 

communities they serve, whose rights are protected under the Fourth, Eighth, and Fourteenth 

Amendments.3

While allegations that some police force is excessive, unjustified, and discriminatory continue and 

proliferate, current data regarding police use of force is insufficient to determine if instances are 

occurring more frequently. The public continues to hear competing narratives by law enforcement 

and community members, and the hard reality is that available national and local data is flawed 

and inadequate. 

A central contributing factor is the absence of mandatory federal reporting and standardized 

reporting guidelines. Former FBI Director James Comey stated that: 

Not long after riots broke out in Ferguson [in 2014], I asked my staff to tell me how 

many people shot by police were African-American in this country. I wanted to see 

trends. I wanted to see information. They couldn’t give it to me, and it wasn’t their 

fault. Demographic data regarding officer-involved shootings is not consistently 

reported to us . . . [b]ecause reporting is voluntary, our data is incomplete and 

therefore, in the aggregate, unreliable.4 

 

1 See, e.g., Sara Sidner and Mallory Simon, “The rise of Black Lives Matter: Trying to break the cycle of violence 

and silence,” CNN, Dec. 28, 2015, http://www.cnn.com/2015/12/28/us/black-lives-matter-evolution/index.html; 

Cristina Flesher Fominaya, Social Movements and Globalization: How Protests, Occupations and Uprisings are 

Changing the World (New York: Palgrave MacMillan, 2014). 

2

 Maya Rhodan, “Why President Obama’s Police Reform Is a Work in Progress,” Time, July 8, 2016, 

http://time.com/4398392/obama-police-reform-report-task-force-on-21st-century-policing/. 

3

 U.S. CONST. amends. IV, VIII, and XIV. 

4

 James B. Comey, “Hard Truths: Law Enforcement and Race” (speech delivered at Georgetown University, 

Washington, D.C., Feb. 12, 2015), https://www.fbi.gov/news/speeches/hard-truths-law-enforcement-and-race. 
2 Police Use of Force 

Until recently, data on officer-involved shootings were extremely rare; moreover, the data that are 

available is most frequently compiled by grassroots organizations, nonprofits, or media sources.5

Data are not only lacking regarding fatal police shootings, but data regarding all use of force are 

scant and incomplete: 

Data on lower level uses of force, which happen more frequently than officerinvolved shootings, are virtually non-existent. This is due, in part, to the fact that 

most police precincts don’t explicitly collect data on use of force, and in part, to the 

fact that even when the data is hidden in plain view within police narrative accounts 

of interactions with civilians, it is exceedingly difficult to extract.6 

Without accurate data on police use of force, allegations by community members and actions by 

law enforcement not only sow distrust among communities and the police, making policing more 

dangerous, but also jeopardize public safety. Research consistently shows that positive 

relationships between community members and law enforcement are essential for safer 

communities.7

 Citizens are more likely to aid in crime reduction and partner with police if they 

believe that law enforcement are engaging in equitable treatment and are impartial towards all.8

 

5

 Kimberly Kindy, “FBI to Sharply Expand System for Tracking Fatal Police Shootings,” Washington Post, Dec. 8, 

2015, https://www.washingtonpost.com/national/fbi-to-sharply-expand-system-for-tracking-fatal-policeshootings/2015/12/08/a60fbc16-9dd4-11e5-bce4-708fe33e3288_story.html?wpisrc=nl_draw; Jon Swaine and Oliver 

Laughland, “Eric Garner and Tamir Rice among those missing from FBI record of police killings,” Guardian, Oct. 

15, 2015, https://www.theguardian.com/us-news/2015/oct/15/fbi-record-police-killings-tamir-rice-eric-garner; 

Wesley Lowery, “Aren’t more white people than black people killed by police? Yes, but no,” Washington Post, July 

11, 2016, https://www.washingtonpost.com/amphtml/news/post-nation/wp/2016/07/11/arent-more-white-peoplethan-black-people-killed-by-police-yes-but-no/; Guardian, “The Counted: People Killed by the Police in the U.S.,” 

2016, https://www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police-killings-us-database 

(database collecting number of deaths caused by police); Mapping Police Violence, “2017 Police Violence Report,” 

https://policeviolencereport.org/ (last accessed Nov. 3, 2018); We Charge Genocide, The Counter-CAPS Report: 

The Community Engagement Arm of the Police State, 2015, http://wechargegenocide.org/wpcontent/uploads/2015/10/CAPSreport-final.pdf. 

6

 Roland G. Fryer, “An Empirical Analysis of Racial Differences in the Use of Force,” National Bureau of Roland 

Fryer, “An empirical analysis of racial differences in the use of force,” NBER Working Paper 22399, National Bureau 

of Economic Research, revised in 2018, http://www.nber.org/papers/w22399. 

7

 Tom Tyler, Why People Obey the Law (Princeton: Yale University Press, 2006); Ben Bradford and Jonathan 

Jackson, “Cooperating with the Police as an Act of Social Control: Trust and Neighborhood Concerns as Predictors 

of Public Assistance,” May 19, 2016, https://ssrn.com/abstract=1640958. 

8 See Police Executive Research Forum, Legitimacy and Procedural Justice: A New Element of Police Leadership, 

ed. Craig Fisher, 2014, at 6-32, 

http://www.policeforum.org/assets/docs/Free_Online_Documents/Leadership/legitimacy%20and%20procedural%20

justice%20-%20a%20new%20element%20of%20police%20leadership.pdf (citing Tom Tyler, “What are 

Legitimacy and Procedural Justice in Policing? And Why Are They Becoming Key Elements of Police 

Leadership?”); Jason Sunshine and Tom Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public 

Support for Policing, 37 LAW & SOC’Y REV. 513 (2003); Nancy La Vigne, Jocelyn Fontaine, and Anamika Dwivedi, 

How Do People in High-Crime, Low-Income Communities View the Police?, Urban Institute, 2017, 

https://www.urban.org/sites/default/files/publication/88476/how_do_people_in_high-crime_view_the_police.pdf; 

Senator Mark Leno, “Police Transparency and Accountability,” ACLU of Northern California, 
Executive Summary 3 

Communities are calling for greater transparency and accountability on the part of the police.9

Similarly, law enforcement officials are calling for better data on current practices, and instituting 

policies aimed at reducing bias and improving community relationships.10 All citizens in every 

community in this country live subject to police enforcement practices, and therefore benefit from 

effective, constitutionally sound police practices. 

Against this backdrop, the U.S. Commission on Civil Rights (Commission) investigated rates of 

police use of force; questioned whether rates and instantiations of that use of force violate the civil 

rights of persons of color, persons with disabilities, LGBT11 communities, and low-income 

persons; and evaluated promising or proven policies and practices worth replicating to minimize 

unnecessary use of force and the perception and reality of discrimination in police use of force. 

The Commission held a briefing on April 20, 2015, on police practices and the use of deadly force 

in the U.S. The panels consisted of community leaders and police reform advocates, law 

enforcement and court officials, scholars, and legal experts. These experts convened to discuss the 

longstanding and emergent causes of the recent police-involved fatal shootings of people of color 

and other disadvantaged populations. Since 2015, several of the Commission’s state advisory 

committees have also investigated police practices, and testimony and findings from their briefings 

are incorporated throughout the report. No single solution stands out as an immediate fix to the 

complex problem of police unauthorized use of force. After examining the literature and data 

available regarding police use of force in Chapters 1-3, the Commission highlights the following 

findings and recommendations, discussed in full in Chapter 4: 

Highlighted Findings: 

Police officers have the difficult and admirable job of providing crucial services to the 

communities they protect and serve. Their job sometimes puts them in harm’s way and may require 

the use of force. Accordingly, police officers must operate with the highest standards of 

professionalism and accountability. 

Every community resident should be able to live, work, and travel confident in an expectation that 

interactions with police officers will be fair, operate consistent with constitutional norms, and be 

guided by public safety free from bias or discrimination. Unfortunately, today, too many 

 

https://www.aclunc.org/our-work/legislation/police-transparency-accountability-sb-1286 (last accessed Oct. 25, 

2018).

9

 President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century 

Policing, Office of Community Oriented Policing Services, 2015, at 12, https://ric-zai-inc.com/Publications/copsp311-pub.pdf; U.S. Dep’t of Justice, Importance of Police-Community Relationships and Resources for Further 

Reading, Community Relations Services Toolkit for Policing, at 2, 

https://www.justice.gov/crs/file/836486/download. 

10 See e.g., Tyler, Why People Obey the Law, supra note 7; The Police Foundation and The U.S. Dep’t of Justice, 

Office of Community Oriented Policing Services, “Police Data Initiative,” https://www.policedatainitiative.org/ (last 

accessed Oct. 25, 2018); Samuel Walker, “Police Accountability: Current Issues and Research Needs” (paper 

presented at the National Institute of Justice (NIJ) Policing Research Workshop: Planning for the Future, 

Washington, D.C., Nov. 28-29, 2006), https://www.ncjrs.gov/pdffiles1/nij/grants/218583.pdf. 

11 LGBT is an acronym used to refer to lesbian, gay, bisexual, and transgender communities. 
4 Police Use of Force 

communities are not confident in that expectation and do not trust fair police-community 

interactions. Communities have demanded reforms to foster better community-police relations and 

to prevent unjustified and excessive police uses of force. 

Accurate and comprehensive data regarding police uses of force is generally not available to police 

departments or the American public. No comprehensive national database exists that captures rates 

of police use of force. 

The best available evidence reflects high rates of use of force nationally, and increased likelihood 

of police use of force against people of color, people with disabilities, LGBT people, people with 

mental health concerns, people with low incomes, and those at the intersections of these groups. 

 

Lack of training and lack of funding for training leave officers and the public at risk. Critical 

training areas include tactical training, de-escalation techniques, understanding cultural 

differences and anti-bias mechanisms, as well as strategies for encounters with individuals with 

physical and mental disabilities. 

 

Repeated and highly publicized incidents of police use of force against persons of color and people 

with disabilities, combined with a lack of accurate data, lack of transparency about policies and 

practices in place governing use of force, and lack of accountability for noncompliance foster a 

perception that police use of force in communities of color and the disability community is 

unchecked, unlawful, and unsafe. 

Highlighted Recommendations: 

The Department of Justice should return to vigorous enforcement of constitutional policing, 

including pursuant to 42 U.S.C. § 14141 and use of consent decrees as necessary where 

constitutional policing standards are not being upheld. 

The Department of Justice should robustly support local efforts to develop and institute 

constitutional policing practices. Such support should include reinstating the Office of Community 

Oriented Policing Services (COPS) and maintaining the Community Relations Services office 

(CRS) to focus on building community trust and reducing excessive uses of force in coordination 

with police departments. DOJ support also should include grant support as well as generation of 

federal guidance supporting development of effective training, policies, and internal accountability 

measures that promote expanded strategies and tactics that safeguard the lives of officers and 

citizens. 

Congress should fund grants that support effective external police oversight through, for example, 

independent monitors or police commissions or community oversight. Congress should also fund 

grants for research regarding best practices for such oversight, to develop replicable models that 

communities could follow to ensure constitutionally sound policing in their jurisdictions. 
Executive Summary 5 

Congress should fund grants, facilitated by the Department of Justice, to incentivize evidencebased best practices that, when employed, reduce incidents of excessive force. The following 

practices deserve serious consideration as policy makers pursue mechanisms to keep communities 

safer: 

 Officers should be trained on de-escalation tactics and alternatives to use of force. Tactical 

training should include strategies to create time, space, and distance, to reduce the 

likelihood that force will be necessary and should occur in realistic conditions appropriate 

to the department’s location. 

 Courts and legislatures should require judges to preside over grand jury proceedings and 

open the records of these proceedings in police use of force cases to the public, in cases 

where the identity of the subject of the investigation is already public. 

 Investigation and prosecution of use of force cases should be made as independent and 

public as possible. The agencies investigating and determining whether to move forward 

with prosecution should not have an ongoing relationship with the department. 

 Departments should provide aggregate information to the public regarding the numbers of 

allegations and type of use of force and what steps, if any, departments take to address use 

of force concerns when they arise. These data should be disaggregated by race, gender and 

disability status. 

 
6 Police Use of Force 

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Introduction, Data, and Major Theoretical Perspectives 7 

CHAPTER 1: INTRODUCTION: DEFINITIONS, DATA, AND 

MAJOR THEORETICAL PERSPECTIVES 

The issue of police use of excessive force (both non-lethal and lethal) has been a central concern 

for researchers, community advocates, and law enforcement for many decades. The negative 

effects of uneven policing practices against particular communities (e.g., racial and ethnic, LGBT, 

immigrant, disability) are well documented in the social science literature;12 however, there is scant 

research that has analyzed the psychological or social effects of uneven policing practices on these 

communities. Phillip Atiba Goff, president of the Center for Policing Equity, states that one of the 

challenging issues about policing practices is that researchers have primarily focused on how these 

practices affect crime and crime rates, instead of also investigating the social and psychological 

effects on individuals.13 The National Academies of Sciences report on proactive policing found 

that it is likely that some forms of police practices (e.g., targeting “high-risk” areas) may lead to 

large racial disparities, however few studies have been able to conclude the causes of these 

disparities or the social consequences of police-civilian contact. These gaps in research leave 

police departments and communities concerned about the treatment of individuals without 

sufficient evidence from which to make informed decisions.14 Thus, while reform advocates have 

decried instances, patterns, and practices where police have not treated civilians equitably, without 

comprehensive data on policing, it is difficult to fully determine any trends and how to address 

them. 

 

12 See e.g., Christy Mallory, Amira Hasenbush, and Brad Sears, Discrimination and Harassment by Law 

Enforcement in the LGBT Community, The Williams Institute, 2015, at 4, http://williamsinstitute.law.ucla.edu/wpcontent/uploads/LGBT-Discrimination-and-Harassment-in-Law-Enforcement-March-2015.pdf; We Charge 

Genocide, The Counter-CAPS Report: The Community Engagement Arm of the Police State, 2015, at 5-6, 

http://wechargegenocide.org/wp-content/uploads/2015/10/CAPSreport-final.pdf; see generally Phillip Atiba Goff, 

Tracey Lloyd, Amanda Geller, Steven Raphael, and Jack Glaser, The Science of Justice: Race, Arrests, and Police 

Use of Force, Center for Policing Equity, 2016, http://policingequity.org/wpcontent/uploads/2016/07/CPE_SoJ_Race-Arrests-UoF_2016-07-08-1130.pdf; Mike King, “Disruption is Not 

Permitted: The Policing and Social Control of Occupy Oakland,” Critical Criminology, vol. 21 (2013); Jonathan 

Hutto and Rodney Green, “Social Movements Against Racial Police Brutality and Department of Justice 

Intervention in Prince George’s County, Maryland,” Journal of Urban Health, vol. 96 (2016), at 89-121, 

https://link.springer.com/article/10.1007/s11524-015-0013-x; Harvard T.H. Chan School of Public Health, 

Discrimination in America: Experiences and Views of African Americans, Robert Wood Johnson Foundation, 2017, 

at 4 (including a survey of 802 African-American U.S. adults conducted January 26-April 9, 2017. The margin of 

error for the full African American sample is +/- 4.1%); David Perry and Lawrence Carter-Long, The Ruderman 

White Paper on Media Coverage of Law Enforcement Use of Force and Disability, Ruderman Family Foundation, 

2016, http://www.rudermanfoundation.org/wp-content/uploads/2016/03/MediaStudy-PoliceDisability_finalfinal1.pdf. 

13 Phillip Atiba Goff, “On Stop-and-Frisk, We Can’t Celebrate Just Yet.” New York Times, Jan. 7, 2018, 

https://www.nytimes.com/2018/01/07/opinion/stop-and-frisk-celebrate.html. 

14 David Weisburd and Malay K. Majmundar, eds., Proactive Policing: Effects on Crime and Communities, National 

Academies of Sciences, Engineering, and Medicine, Division of Behavioral and Social Science and Education, 

Committee of Law and Justice, 2018, at 13, https://www.nap.edu/catalog/24928/proactive-policing-effects-oncrime-and-communities. 
8 Police Use of Force 

Enacting needed reforms has also been difficult for law enforcement agencies around the country 

due to the fact that there are over 18,000 police departments nationally—which are all subject to 

significant and variable state and local rules.15 Private organizations and government agencies like 

the Police Executive Research Forum (PERF)16 and the Department of Justice’s Office of 

Community Oriented Policing Services (COPS)17 have made many recommendations and issued 

guidelines to aid law enforcement agencies. They have offered suggestions on how departments 

can update their use of force policies and change officers’ actions in hope of creating safer 

interactions between individuals and police officers. In response, many law enforcement agencies 

have started to rewrite or revise procedures and protocols that focus on respecting the sanctity of 

all lives, and are working to implement sustainable and lasting practices. In addition, departments 

that have successfully exited from or are in the midst of reform under the Justice Department’s 

(DOJ) oversight offer promising practices that could guide other police agencies. Several 

departments have stood out as exemplars in bringing about reform, such as the East Haven, 

Connecticut Police Department. In 2016, in its 36-month Justice Department Compliance Report, 

the police department received high marks for changing public perception and meeting “each and 

every benchmark for success specified [by] the Department of Justice both on-time and under 

budget.”18 Former Attorney General Loretta Lynch praised their efforts stating: “[W]e’re hoping 

other cities can look to and see how this change is implemented here. It does take a lot of work. It 

takes a lot of will. It takes a lot of effort, but it can be done.”19

 

 

15 U.S. Dep’t of Justice, Bureau of Justice Statistics, National Sources of Law Enforcement Employment Data, 2016, 

at 1, https://www.bjs.gov/content/pub/pdf/nsleed.pdf; Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 

756 (1985). In the U.S. constitutional system of federalism, local “police power” falling under state sovereignty 

includes the ability to legislate and regulate to ensure public safety, education, health and welfare, and for police to 

regulate and act accordingly; however, local police power is limited by the mandates of the Bill of Rights and 

related civil rights law. The Supreme Court has reasoned that “states traditionally have had great latitude under their 

police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.” While 

there is significant state and local authority, there are also numerous instances of police departments being held 

accountable under federal constitutional and civil rights law. Id.

16 The Police Executive Research Forum (PERF) is a private, police research and policy organization and a provider 

of management services, technical assistance, and executive-level education to support law enforcement agencies. 

17 The Office of Community Oriented Policing Services (COPS Office) is the component of the U.S. Department of 

Justice that is responsible for advancing the practice of community policing by the nation’s state, local, territorial, 

and tribal law enforcements agencies through information and grant resources. 

18 While reform to the department is promising, it is important to note that these reforms follow a DOJ investigation 

and negotiation of a consent decree requiring reform of the department. Thus, these actions taken by the police 

department are separate and apart from a voluntary revelation from the police department itself. See Jamie Wilkins, 

“Maturo Praises Police Department 4 Years After Department of Justice Agreement,” East Haven Patch, Dec. 26, 

2016, https://patch.com/connecticut/easthaven/maturo-praises-police-department-4-years-after-department-justiceagreement-0. 

19 Ibid. 
 Introduction, Data, and Major Theoretical Perspectives 9 

Defining Excessive Use of Force 

One of the central issues concerning police’s use of force is how to define the boundary between 

when force may be necessary or reasonable, versus when it becomes excessive.20 While the 

majority of interactions between police and civilians are peaceful, there are instances where force 

may be necessary. The Supreme Court has held that an objective reasonableness standard should 

apply to claims that police officers used excessive force.21 Even under an objective reasonableness 

standard, quantifying the appropriate amount of force in a given situation can be difficult and 

debatable.22 

According to the National Institute of Justice, force is permitted at certain times, such as in selfdefense or in defense of another individual or group.23 Even in these circumstances, there is no 

single, definitive answer for how much force is “necessary” in any given situation.24 According to 

the International Association of Chiefs of Police, the appropriate amount of force is the “amount 

of effort required by police to compel compliance from an unwilling subject.”25 While there are 

guidelines, there is not a universal set of rules governing law enforcement’s use of force policies. 

To determine if force is “excessive” requires judging that the amount of force used was 

unwarranted, and that the officer overstepped the limits of his or her authority. Researchers Alpert 

and Dunham argue that “since the use of force and excessive force can be defined or measured in 

a variety of ways, it is impossible for researchers to state definitively the frequency with which the 

police use force, justifiably or to excess.”26 

In 1989, in the case of Graham v. Connor, the United States Supreme Court held that police use 

of force should be evaluated based on “objective reasonableness” and explained that 

reasonableness 

must be judged from the perspective of a reasonable officer on the scene, rather 

than with the 20/20 vision of hindsight . . . The calculus of reasonableness must 

embody allowance for the fact that police officers are often forced to make split-

 

20 The National Institute of Justice, “Police Use of Force,” Office of Justice Programs, https://nij.gov/topics/lawenforcement/officer-safety/use-of-force/pages/welcome.aspx (last accessed Oct. 26, 2018). 

21 Graham v. Connor, 490 U.S. 386, 396-97 (1989) (stating that in “determining whether the force used to effect a 

particular seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of “‘the nature and 

quality of the intrusion on the individual’s Fourth Amendment interests’” against the countervailing governmental 

interests at stake”) (internal citations omitted). 

22 Geoffrey Alpert and Roger Dunham, Understanding Police Use of Force: Officers, Suspects, and Reciprocity

(London: Cambridge University Press, 2010). 

23 The National Institute of Justice, “Police Use of Force,” Office of Justice Programs, https://nij.gov/topics/lawenforcement/officer-safety/use-of-force/pages/welcome.aspx (last accessed Oct. 26, 2018). 

24 Ibid. 

25 International Association of Chiefs of Police, Police Use of Force in America (2001), 

http://www.theiacp.org/Portals/0/pdfs/Publications/2001useofforce.pdf. 

26 Alpert and Dunham, Understanding Police Use of Force, supra note 22 at 20. 
10 Police Use of Force 

second judgments—in circumstances that are tense, uncertain, and rapidly 

evolving—about the amount of force that is necessary in a particular situation.27 

While Graham established the constitutional floor for excessive use of force, many jurisdictions 

have chosen to move beyond these bare minimums and adopt a more exacting and detailed set of 

policies and training procedures such as rules on shooting at moving vehicles, rules on pursuits, 

and other use of force issues.28 Similarly, members of the public have commented that the great 

degree of discretion left to police departments by the Supreme Court’s decision in Graham means 

their concerns are not being addressed by the courts, leaving the legislature and police departments 

to take the initiative in addressing excessive police force.29 

At the same time, another main issue with trying to determine whether force was excessive or 

appropriate is that community perceptions do not necessarily follow the same standard as the legal 

one.30 While a police officer may be acting within the legal confines laid out by Graham, the public 

may perceive the officer behaving badly or illegitimately. This significant disconnect can reduce 

community confidence in the legitimacy of the police, which ultimately reduces the efficacy of 

police work by making members of the community less responsive in future interactions with the 

police and less likely to assist officers in investigations. UCLA law professor Devon Carbado 

argues that the amount of latitude police legally have under Fourth Amendment law can be 

dangerous and misguided.31 In an attempt to address these issues, some departments have begun 

to implement policies that are more community-centered, in hope of building trust.32

PERF states that law enforcement departments should go beyond the minimum requirements laid 

out by Graham in hope of fostering community trust and to implement policies to help prevent 

officers from putting themselves in situations where they have no choice but to make split-second 

decisions that may result in injury or death of either the person or officer.33 For example, some 

departments have implemented policies such as restricting officers from putting their hands on a 

suspect after a foot pursuit or shooting into motor vehicles.34 Milwaukee Police Chief Edward 

 

27 Graham, 490 U.S. at 396-97. 

28 Police Executive Research Forum, Guiding Principles on Use of Force, Critical Issues in Policing Series, 2016, at 

16, http://www.policeforum.org/assets/30%20guiding%20principles.pdf; see also Hillsborough Cty. v. Automated 

Med. Lab., 471 U.S. 707, 719 (1985) (“Police powers” to protect health and safety are “primarily, and historically... 

matter[s] of local concern”); Metropolitan Life, 471 U.S. at 756 (reasoning that “states traditionally have had great 

latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all 

persons”) (internal quotation marks omitted). 

29 Graham, 490 U.S. at 396-97. 

30 Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to 

Police Violence, 105 CAL. L. REV. 125 (2017). 

31 Id. at 134 (citing Maryland v. Garrison, 480 U.S. 79 (1987)). 

32 Advancement Project and PolicyLink, Limiting Police Use of Force: Promising Community-Centered Strategies, 

2014, at 19-20, https://www.policylink.org/sites/default/files/pl_police_use%20of%20force_111914_a.pdf. 

33 Police Executive Research Forum, Guiding Principles on Use of Force, supra note 28 at 16-17.

34 Ibid. at 84-85. 
 Introduction, Data, and Major Theoretical Perspectives 11 

Flynn asserts that police also need to be held accountable for the decisions that lead up to the use 

of deadly force.35 He argues that officers should be reprimanded (if not fired) for instigating 

“officer-created jeopardy” or placing themselves in a situation where lethal force is their only 

choice.36 Similarly, at the Commission’s briefing, David Klinger, Professor of Criminology at the 

University of Missouri, observed that when incidents of excessive force arise, it is not only a failure 

on the part of the officer, but also a failure of supervision that needs to be addressed.37 

Many police departments utilize what is known as the “use of force continuum.”38 These are 

guidelines that provide officers with a range of options during confrontations with individuals, and 

acknowledge that the level of force used will vary depending on the situation. As an example, the 

National Institute of Justice defines the levels of officer response in a use of force continuum as 

follows: 

 Officer Presence: No force is necessary. The mere presence of an officer is suitable 

to deter crime or diffuse a situation. Considered the best way to resolve a situation. 

 Verbalization: Force is not physical. Officers use calm, nonthreatening commands, 

e.g., “Let me see your identification and registration.” May increase volume and 

shorten commands in an attempt to gain compliance (“stop” or “don’t move”). 

 Empty-Hand Control: Officers use bodily force to gain control of a situation. 

There are soft techniques (grabs, holds, joint locks) and hard techniques (punches 

and kicks) used to restrain an individual. 

 Less-Lethal Methods: Officers use less-lethal technologies to gain control of a 

situation. These can be in the form of blunt impact such as using a baton or 

projectile to immobilize a combative person. Chemical: chemical sprays or 

projectiles embedded with chemicals to restrain an individual (e.g., pepper spray). 

Conducted Energy Devices (CEDs): These devices discharge a high-voltage, lowamperage jolt of electricity at a distance (e.g., Tasers), officers may use conducted 

energy devices to immobilize an individual. 

 Lethal Force: Officers use lethal weapons to gain control of a situation. This is the 

last and most severe response in the continuum and should only be used if a suspect 

poses a serious threat to the officer or another individual.39 

 

35 Ibid. at 37-38 (emphasis in original). 

36 Ibid. 

37 David Klinger, University of Missouri, testimony before the U.S. Commission on Civil Rights, briefing, New 

York City, N.Y., April 20, 2015, transcript, at 334-35 [hereinafter Briefing Transcript]. 

38 National Institute of Justice, “Use of Force Continuum,” Office of Justice Programs, https://nij.gov/topics/lawenforcement/officer-safety/use-of-force/Pages/continuum.aspx (last accessed Oct. 26, 2018). 

39 Ibid. 
12 Police Use of Force 

PERF recommends that proportionality is a good measure to determine the legal use of force.40

This means that a civilian’s level of resistance is a key legal factor in the continuum.41 Therefore, 

“excessive force” is when an officer uses a more extreme method on the continuum than what the 

situation called for.42 In 1968, Albert Reiss, Professor Emeritus of Sociology at Yale University 

and prominent criminologist, offered “one of the first situational definitions of excessive force by 

constructing conditions where the use of force would be considered unnecessary.”43 Reiss suggests 

that force is excessive when used without subsequent arrest, when a citizen did not verbally or 

physically resist, or when an officer continued using force after a civilian was in custody.44 Using 

this paradigm, Los Angeles police force veteran and expert Richard Lichten built on Reiss’ 

definitions and provided more concrete examples to aid in police officer training.45 One such 

example is if an officer tells a suspect that he or she is under arrest, but the suspect threatens to 

punch the officer. The officer pulls out a baton and threatens to strike the suspect. If the suspect 

backs down, but the officer hits the suspect anyway, this would be defined as “unnecessary force” 

because the suspect had already complied with the officer’s order and the threat had ended. In the 

same scenario, if the suspect instead lunges to punch the officer and the officer strikes the suspect 

with a baton, that level of force would be justified. If the suspect stops and cooperates, but the 

officer continues to strike the person repeatedly, this would be understood as “excessive.”46

But the problem is, these examples are absolute and concrete, and sometimes situations in the real 

world are not as clear. Most civilian-officer confrontations cannot be placed into such rigid 

categories. Thus, PERF contends that the use of force continuum is outdated and needs to be 

revised.47 They suggest that officers need to be trained to evaluate the entire situation at the 

moment when police are called, and to start developing a plan even before they arrive on the 

scene.48 This way, they can be better prepared to make decisions within the wide range of available 

options, including defusing a situation without resorting to using excessive force.49 

State of National Data Collection 

More than 20 years ago, Congress mandated that the Justice Department shall collect national data 

on police use of force and DOJ directed the FBI and Bureau of Justice Statistics (BJS) to do so, 

 

40 Police Executive Research Forum, Guiding Principles on Use of Force, supra note 28 at 38-39. 

41 Ibid. 

42 Ibid. 

43 Alpert and Dunham, Understanding Police Use of Force, supra note 22 at 22 (citing Albert J. Reiss, Police 

Brutality: Answers to Key Questions). 

44 Ibid. 

45 Richard Lichten, “Unnecessary/Excessive Use of Force—A Working Definition,” Police and Jail Procedures, Inc., 

2014, http://www.policeandjailprocedures.com/live/excessive_use_of_force.html (last accessed Oct. 26, 2018). 

46 Ibid. 

47 Police Executive Research Forum, Guiding Principles on Use of Force, supra note 28 at 19-20. 

48 Ibid. 

49 Ibid. 
 Introduction, Data, and Major Theoretical Perspectives 13 

but the federal mandate does not require local law enforcement to provide the data.50 Under the 

federal mandate, the Department of Justice surveys every law enforcement agency in the country 

to collect data on the use of force,51 but not all such agencies offer data to DOJ, and some agencies 

that do offer data only offer incomplete data. Of those that do reply, some departments lack 

tracking systems in place to track nonfatal incidents; other departments report only limited 

information (e.g., if the suspect was armed); and others do not provide any demographic data.52

Separate from this effort, in 2017 the FBI began a new data collection effort relying on voluntarily 

submitted reports from state and local law enforcement, the National Use-of-Force Data 

Collection.53

A separate data set on police use of force used by researchers is found in the National Vital 

Statistics System (NVSS).54 The Centers for Disease Control and Prevention conduct the NVSS 

based on state death certificate data, including deaths resulting from injuries inflicted by law 

enforcement officers. These data are housed at the National Center for Health Statistics.55

Additionally, the Bureau of Justice Statistics conducts data collection programs that provide data 

on police use of force. BJS collects data on police use of force by surveying individuals about their 

interactions with police as part of the Police Public Contact Survey, as a supplement to the National 

Crime Victimization Survey.56 It also collects data through its Mortality in Correctional 

Institutions program through the voluntary collection of death records for persons who died in 

 

50 42 U.S.C. § 136. 

51 42 U.S.C. § 14142 (transferred to 34 U.S.C. § 12602) (requiring the Department of Justice to collect data on 

excessive force by police and to publish an annual report from the data (Title XXI, Subtitle D, Police Pattern or 

Practice)); see also Id. 

52 Rob Arthur, Taylor Dolven, Keegan Hamilton, Allison McCann, and Carter Sherman, “Shot by Cops and 

Forgotten,” Vice News, Dec. 11, 2017, https://news.vice.com/story/shot-by-cops. 

53 According to the FBI, this data collection will aid in the understanding of national trends in police use of force. It 

has explained that data collection will occur voluntarily from law enforcement agencies: “For the national data 

collection, each agency will be responsible for reporting information for their own officers connected to incidents 

that meet the criteria of the data collection. Submission of data is entirely voluntary. Most law enforcement agencies 

in the United States already report various types of law enforcement data to the FBI, either directly or through their 

state agencies. Part of the plan for the National Use-of-Force Data Collection includes an opportunity for agencies to 

report use-of-force incidents electronically, either individually or via bulk submission, through a web application in 

the Law Enforcement Enterprise Portal (LEEP).” FBI: Uniform Crime Reporting, “National Use-of-Force Data 

Collection,” https://ucr.fbi.gov/use-of-force (last accessed Oct. 26, 2018). 

54 The NVSS is a database kept by the Centers for Disease Control and Prevention that is responsible for aggregating 

all annual deaths in the U.S. and it has been collected since the late 1800s. See Justin Feldman, Sofia Gruskin, Brent 

Coull, Nancy Krieger, “Quantifying underreporting of law-enforcement-related deaths in the United States vital 

statistics and news-media-based data sources: A capture-recapture analysis,” PLoS Med, vol. 14 (2017), 

http://journals.plos.org/plosone/article?id=10.1371/journal.pone.019293. 

55 See National Center for Health Statistics, National Vital Statistics System, “Public-Use Data Files and 

Documentation,” Centers for Disease Control and Protection, https://www.cdc.gov/nchs/data_access/ftp_data.htm 

(last accessed Oct. 26, 2018). 

56 U.S. Dep’t of Justice, “Data Collection: Police Public Contact Survey (PPCS),” Bureau of Justice Statistics, 

https://www.bjs.gov/index.cfm?ty=dcdetail&iid=251 (last accessed Oct. 26, 2018). 
14 Police Use of Force 

prisons and local jails and who died in the process of arrest.57 BJS also collaborated with the 

International Association of Chiefs of Police on a database of police use of force, completed in 

2001.58 This voluntary data collection over 36 months included 564 state and local enforcement 

agencies.59

Two new data transparency initiatives aim to provide additional insights into police use of force. 

The Police Data Initiative is a nonprofit partnership between the Police Foundation and the COPS 

Office at the Department of Justice, begun in 2015.60 It does not collect its own data, but rather 

gathers and makes public data that state and local departments have already made available to the 

public.61 California recently began a statewide data transparency initiative called OpenJustice.62

The California Department of Justice publishes reports on criminal justice statistics and also makes 

available some data sets on a public website.63 Law enforcement agencies are required to report 

use of force incidents that result in serious bodily injury, death of a civilian or officer, and all 

discharges of a firearm. Although data collection is mandatory, not all law enforcement agencies 

reported in 2016, the first year of data collection.64 

None of these data programs are comprehensive. Not only is the FBI’s Uniform Crime Report 

(UCR) data incomplete, but studies have shown that it may also be selectively reported.65

Researchers have found that the majority of the 18,000+ police departments only selectively file 

fatal police shootings reports, and some do not at all.66 In a 2017 Harvard study, researchers found 

 

57 U.S. Dep’t of Justice, Data Collection: Mortality in Correctional Institutions (MCI), Bureau of Justice Statistics, 

https://www.bjs.gov/index.cfm?ty=dcdetail&iid=243 (last accessed Oct. 26, 2018). Mortality in Correctional 

Institutions (MCI) collects data on deaths that occur while inmates are in the custody of local jails, state prisons, or 

the Federal Bureau of Prisons (BOP). The Bureau of Justice Statistics began the MCI (formerly the DCRP) in 2000 

in response to the passage of the Death in Custody Reporting Act (DCRA) of 2000. 

58 International Association of Chiefs of Police, Police Use of Force in America 2001, 2001. 

59 Ibid. 

60 The Police Data Initiative is an Obama administration program meant to aid in transparency about policing. While 

the PDI reports that 130 law enforcement agencies have released more than 200 datasets, the information these 

agencies report greatly vary between departments. While 35 departments release data on officer involved shootings, 

only 24 departments release data on use of force incidents that can include verbal, physical, chemical, impact, 

electronic, and firearm. The Police Foundation and The U.S. Dep’t of Justice, Office of Community Oriented 

Policing Services, “Police Data Initiative,” supra note 10. 

61 Ibid. According to the initiative’s website: “The agencies participating in this community of practice have chosen 

to release their data to the public, therefore anyone can collect the data. However, it is important to note that this 

initiative, the DOJ COPS Office, nor The Police Foundation are collecting this data at the national level. This 

website only provides an index to these agency’s webpages where the data can be downloaded by the public.” 

62 California Dep’t of Justice, “Use of Force Incident Reporting 2017,” OpenJustice 

https://openjustice.doj.ca.gov/2016/use-of-force (last accessed Oct. 26, 2018). 

63 Ibid. 

64 Ibid. 

65 Ryan Gabrielson, Eric Sagara, and Ryann Grochowski Jones, “Deadly Force, in Black and White,” ProPublica, 

Oct. 10, 2014, https://www.propublica.org/article/deadly-force-in-black-and-white. 

66 Ibid. 
 Introduction, Data, and Major Theoretical Perspectives 15 

that over half of all fatal police shootings in 2015 were misclassified as not being the result of 

interactions with law enforcement in the death records compiled by the NVSS.67 

Despite technological advancements in case management and data reporting capabilities, many 

police departments fail to report on the number of police-involved killings within their jurisdictions 

in a given year.68 Some jurisdictions do not have reliable data on use of force cases because many 

departments do not have an objective measure for “use of force,” thus officers are not reporting 

the incidents.69 Other departments attach force incidents to police reports, whereas others may 

keep separate databases, and others may only record data on paper.70 When the Justice Department 

surveyed police departments nationwide in 2013, they found that about one-fifth refused to 

comment on how they kept their data.71 Moreover, they found that in many departments, even in 

large jurisdictions such as New York City, Houston, Baltimore, and Detroit, law enforcement 

officials either refused to answer the question altogether or answered that they did not know how 

many times their officers used force.72 Further, in private conversations, some police officials told 

the Justice Department that they were reluctant to turn over data that the department could use to 

vilify them.73 

Stephen Fischer, an FBI spokesperson, told the Guardian that exclusions were inevitable because 

the program remained voluntary. He stated: “We have no way of knowing how many incidents 

may have been omitted.”74 Moreover, the extent of the data collection and reporting activities vary 

widely across jurisdictions. For instance, several Florida departments have failed to file reports 

since 1997.75 Cody Ross, postdoctoral fellow at the Max Planck Institute, posits that this fact is 

particularly troubling since Florida has some of the most racially biased police shooting rates in 

 

67 Justin Feldman, Sofia Gruskin, Brent Coull, Nancy Krieger, “Quantifying underreporting of law-enforcementrelated deaths in the United States vital statistics and news-media-based data sources: A capture-recapture analysis,” 

PLoS Med, vol. 14 (2017), http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0192932. 

68 Brian Reaves, Local police departments, 2013: Personnel, policies, and practices, U.S. Dep’t of Justice, Bureau 

of Justice Statistics, 2015, https://www.bjs.gov/content/pub/pdf/lpd13ppp.pdf; Brian Reaves, Local police 

departments, 2013: Equipment and technology, U.S. Dep’t of Justice, Bureau of Justice Statistics, 2015, 

https://www.bjs.gov/content/pub/pdf/lpd13et.pdf (noting that in 2013, over 60% of departments submitted criminal 

incident reports using electronic means); Matt Apuzzo and Sarah Cohen, “Data on Use of Force by Police Across 

the U.S. Proves Almost Useless,” New York Times, Aug. 11, 2015, http://www.nytimes.com/2015/08/12/us/data-onuse-of-force-by-police-across-us-proves-almost-useless.html?_r=0. 

69 Joel Garner, Matthew Hickman, Ronald Malega, and Christopher Maxwell, “Progress toward national estimates 

of police use of force,” PLoS One, vol. 13 (2018). 

70 Reaves, Local police departments, 2013: Equipment and technology, supra note 68. 

71 Ibid. 

72 Apuzzo and Cohen, supra note 68. 

73 Ibid. 

74 Jon Swaine and Oliver Laughland, “Eric Garner and Tamir Rice among those missing from FBI record of police 

killings,” Guardian, Oct. 15, 2015, https://www.theguardian.com/us-news/2015/oct/15/fbi-record-police-killingstamir-rice-eric-garner. 

75 Gabrielson et al., “Deadly Force, in Black and White,” supra note 65. 
16 Police Use of Force 

the U.S.76 The information reported can also vary widely since there are not any federally imposed 

standards. For instance, some cities included incidents of physical assault by an officer, where 

others did not. Some include use of less lethal weapons such as beanbag guns, where others did 

not.77 

According to reporters from the Guardian, an analysis of FBI’s Uniform Crime Reporting data 

between 2004 and 2014 show that: 

 No police departments from Florida reported any homicides by officers, meaning 

deaths caused by police in the country’s third-most populous state were not logged 

by the FBI. 

 The New York City police department, by far the country’s biggest, submitted data 

for just one year during the decade. 

 The FBI recorded only basic personal details of each person killed and no 

information such as whether those persons were armed with a weapon—a critical 

factor in ongoing debates over the use of force by police around the country. 

 Police departments applied unsystematic approaches to recording many highprofile deaths over recent years. Some were logged, some were filed to a separate 

category with general homicides without noting that the subjects were killed by 

police, and others were ignored. 

 Details of other controversial deaths that prompted protests were entered 

incorrectly in the FBI database, which damaged government efforts to monitor 

demographic information about people killed by police.78

 

76 Cody Ross, “A Multi-Level Bayesian Analysis of Racial Bias in Police Shootings at the County-Level in the 

United States, 2011-2014,” PLoS ONE vol. 10 (2015). The work that researchers are undertaking to access these 

data sources can be quite intensive and often relies upon compiling several sources together (as discussed 

previously). For instance, in Ross’ study, he utilized data from the U.S. Police Shootings Database from Kyle 

Wagner. U.S. Police Shootings Database, http://goo.gl/Su60Cm (last accessed Oct. 26, 2018); the county-level 

census population data and county-level covariates on income and inequality from AIDSvu maintained by the 

Rollins School of Public Health at Emory University in partnership with Gilead Sciences, Inc.; racial animus data 

from S. Stephens-Davidowitz, “The cost of racial animus on a black candidate: Evidence using Google search data,” 

Journal of Public Economics, vol. 118 (2014), at 26-40; crime rate data from the U.S. Department of Justice Office 

of Justice Programs, FBI: Uniform Crime Reporting Program Data, “Arrests by Age, Sex, and Race, 2012”; and 

geographic data from R. Hijmans, N. Garcia, J. Wieczorek, “GADM: Database of Global Administrative Areas,” 

2010. Other sources such as an investigation by the Tampa Bay Times reviewed hard copy files on police-involved 

shootings from 2009-2014 for every police department in the state of Florida to collect their data. The investigation 

took over a year to complete, which further demonstrates how the lack of a national database and departments not 

self-reporting contributes to the complexity of this issue. See Ben Montgomery, Natalie Watson, Connie Humburg, 

Katie Mettler and Neil Bedi, “Why Cops Shoot: The Stories,” Tampa Bay Times, 2016, 

http://www.tampabay.com/projects/2017/investigations/florida-police-shootings/database/. 

77 Apuzzo and Cohen, supra note 68. 

78 Analysis based on FBI’s Uniform Crime Reporting data obtained by the Guardian as reported in their article: 

Swaine and Laughland, “Eric Garner and Tamir Rice among those missing from FBI record of police killing,” supra

note 74. 
 Introduction, Data, and Major Theoretical Perspectives 17 

Responding to public pressure for better data collection, the FBI announced in 2016 that it would 

launch a new data collection program, the National Use-of-Force Data Collection.79 The agency 

stated it will now track any incident in which an officer causes serious injury or death to civilians, 

including through the use of stun guns, pepper spray, and even fists and feet.80 The FBI’s new 

“more granular” data collection effort also includes details on the demographics of officers and 

suspects involved in these encounters, the level of threat or danger the officer faced, and the type 

of weapon wielded by either party.81 According to Department of Justice officials, the data are 

expected to be collected and shared with the public in “near real-time.”82 The FBI announced that 

a data collection pilot study began on July 1, 2017 and ended on December 31, 2017. Following 

this pilot period, the live data collection would be open to agencies that wanted to participate.83

While this step by the FBI to obtain more adequate and comprehensive data is positive, the fact 

that reporting is voluntary will likely continue to be a significant hurdle to access reliable data.

At the Commission’s briefing in 2015, William J. Sabol, Former Director of the Bureau of Justice 

Statistics, stated that four of their data collection programs would also be enhanced to better 

capture information on police use of force: 

 Police-Public Contact Survey―a nationally representative sampling of persons 16 

and older that asks about their past-year contacts with police. 

 Survey of Inmates in Local Jails―a national sample of inmates held in local jails 

which aggregates information on nonfatal uses of force by police in the arrest 

leading up to their incarceration. 

 Law Enforcement Management and Administrative Statistics—survey of sample 

law enforcement agencies, including citizen complaints about use of force. 

 Arrest-Related Deaths program―a component of Bureau of Justice Statistics’ 

larger Deaths in Custody Reporting Program, in which the Bureau of Justice 

Statistics obtains descriptions of deaths occurring in state prisons, local jails, and 

deaths that occur in the process of arrest. 84 

Sabol mentioned that while these changes would likely enhance the nation’s understanding of 

police use of force, he acknowledged that “none of these efforts can, by itself, fully address the 

 

79 FBI: Uniform Crime Reporting, “National Use-of-Force Data Collection,” supra note 53. 

80 See U.S. Dep’t of Justice, “Justice Department Outlines Plan to Enable Nationwide Collection of Use of Force 

Data,” Oct. 13, 2016, https://www.justice.gov/opa/pr/justice-department-outlines-plan-enable-nationwide-collectionuse-force-data; Oliver Laughland and Ciara McCarthy, “FBI to begin collecting self-reported data on fatal police 

encounters in 2017,” Guardian, Oct. 13, 2016, https://www.theguardian.com/us-news/2016/oct/13/fbi-police-use-offorce-data-obama-administration. 

81 Kindy, “FBI to sharply expand system for tracking fatal police shootings,” supra note 5. 

82 See FBI: Uniform Crime Reporting, “National Use-of-Force Data Collection,” supra note 53. 

83 Ibid. 

84 See William Sabol, Former Director, Bureau of Justice Statistics, written statement for the “Police Use of Force: 

An Examination of Modern Policing Practices” Briefing before the U.S. Commission on Civil Rights, April 20, 

2015, at 2 [hereinafter Sabol Statement]. 
18 Police Use of Force 

complex set of issues associated with measuring police use of force due to relevance, timeliness, 

completeness, and costs.”85 Since this announcement, no new information has been released 

clarifying whether these changes have been implemented, however the program was included in 

the 2018 Presidential Budget request.86 

Due to the limitations of federal data collection, several newspapers, non-profit organizations, and 

universities have helped provide an understanding of the nature of police-involved killings across 

the country. For instance, data reported in the Washington Post and the Guardian are among those 

most widely cited and frequently used by researchers in cross-racial analyses of police-involved 

shootings, due to being some of the most comprehensive databases on fatal police shootings.87

Cato Institute’s National Police Misconduct Reporting Project provides another dataset, which is 

more focused on providing policymakers with detailed information on the nature and 

circumstances of police misconduct rather than the raw data.88

Moreover, even though a database compiled directly from local police data by the Guardian was 

more accurate than the NVSS and other national data sets, it still missed up to 7 percent of cases.89

Feldman et al. argue that “to effectively address the problem of law enforcement-related deaths, 

the public needs better data about who is being killed, where, and under what circumstances.”90

The Washington Post and the Guardian databases have consistently reported more than twice the 

number of people killed by police than official FBI statistics show since the newspapers began 

tracking in 2015.91 

Additionally, in an effort to standardize data collection on police violence and use of force, the 

Center for Policing Equity has developed a national police profiling and use-of-force database, 

which is the nation’s first database tracking national statistics on police behavior with demographic 

 

85 Ibid. at 15. 

86 See U.S. Dep’t of Justice, Office of Justice Programs, Criminal Justice Statistics Program, FY 18 Program 

Summaries, Law Enforcement Statistics Program, 2017, at 11 (identifying the LEMAS, ARD, and PPCS surveys), 

https://ojp.gov/newsroom/pdfs/2018ojpprogramsummary.pdf. 

87 See Washington Post, “2018 Police Shootings database,” 

https://www.washingtonpost.com/graphics/2018/national/police-shootings-2018/?utm_term=.7ab40d4f7a98 (last 

accessed Oct. 26, 2018); Guardian, “The Counted,” https://www.theguardian.com/us-news/series/counted-us-policekillings (last accessed Oct. 26, 2018). 

88 See Jonathan Blanks, Cato Institute, written statement for the “Police Use of Force: An Examination of Modern 

Policing Practices” Briefing before the U.S. Commission on Civil Rights, April 20, 2015, at 1 [hereinafter Blanks 

Statement]. 

89 Justin Feldman, Sofia Gruskin, Brent Coull, Nancy Krieger, “Quantifying underreporting of law-enforcementrelated deaths in the United States vital statistics and news-media-based data sources: A capture-recapture analysis,” 

PLoS Med, vol. 14 (2017), http://journals.plos.org/plosone/article?id=10.1371/journal.pone.019293. 

90 Ibid. 

91 See, e.g., Franklin E. Zimring, “How Many Killings by Police?” University of Chicago Legal Forum, vol. 2016 

(2016), https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1579&context=uclf. 
 Introduction, Data, and Major Theoretical Perspectives 19 

information on racial impacts.92 However, like federal data, participation is voluntary. Currently, 

more than 40 police departments and law enforcement agencies have signed on to participate in 

the database, which accounts for more than half of all major cities and more than a quarter of the 

nation’s population. 

At the Department of Justice’s Summit on Violent Crime Reduction in Washington, D.C., on 

October 7, 2015, former FBI Director James Comey stated: 

It is unacceptable that The Washington Post and the Guardian newspaper from the 

U.K. are becoming the lead source of information about violent encounters between 

police and civilians. That is not good for anybody . . . You can get online today and 

figure out how many tickets were sold to ‘The Martian,’ which I saw this weekend 

. . . The CDC can do the same with the flu. It’s ridiculous—it’s embarrassing 

and ridiculous—that we can’t talk about crime in the same way, especially in the 

high-stakes incidents when your officers have to use force.93

Comey’s remarks represent a growing concern across the country regarding the paucity of 

information on fatal police shootings and the federal government’s inability to fix the problem. 

Several representatives from public advocacy groups, government agencies, local police 

departments, and experts on the topic all proclaim that the lack of national data on police use of 

force incidents serves as one of the most significant impediments to identifying problems and 

implementing solutions.94 For instance, Michele Jawando and Chelsea Parsons from the Center for 

American Progress stated that too many police departments choose not to submit data or submit 

incomplete data, therefore leaving an incomplete picture.95 Researcher Geoffrey P. Alpert referred 

to it as “a national embarrassment.”96 At the Commissions’ briefing, witnesses Jonathan Blanks, 

 

92 Center for Policing Equity, “National Justice Database,” http://policingequity.org/national-justice-database/ (last 

accessed Oct. 26, 2018). 

93 Aaron Davis and Wesley Lowery, “FBI director calls lack of data on police shootings ‘ridiculous,’ 

‘embarrassing,’” Washington Post, Oct. 7, 2015, https://www.washingtonpost.com/national/fbi-director-calls-lackof-data-on-police-shootings-ridiculous-embarrassing/2015/10/07/c0ebaf7a-6d16-11e5-b31cd80d62b53e28_story.html. 

94 Michel Martin, “‘Washington Post’ Tracks More Than 500 Police Shootings in 2016,” NPR, July 9, 2016, 

https://www.npr.org/2016/07/09/485388407/washington-post-tracks-more-than-500-police-shootings-in-2016; The 

Cato Institute, 2010 Annual Report, National Police Misconduct Reporting Project, 

https://www.leg.state.nv.us/Session/77th2013/Exhibits/Assembly/JUD/AJUD338L.pdf; Apuzzo and Cohen, supra 

note 68. 

95 Michele L. Jawando and Chelsea Parsons, “4 Ideas That Could Begin to Reform the Criminal Justice System and 

Improve Police-Community Relations,” Center for American Progress, Dec. 18, 2014, 

https://www.americanprogress.org/issues/civil-liberties/ report/2014/12/18/103578/4-ideas-that-could-begin- toreform-the-criminal-justice-system-and-improve- police-community-relations/. 

96 Geoffrey Alpert, University of South Carolina, “What We Know and Don’t Know about Police Use of Force” 

(presentation delivered to the Committee on Law and Justice, National Academy of Sciences), April 2016. 
20 Police Use of Force 

John Shane, Fritz Umbach, and David Klinger all testified to the need to establish a comprehensive 

national database on police use of force.97

Researchers have also found the lack of national data and lack of mandated police reporting to be 

critical issues when trying to determine if there are systemic patterns of police using excessive 

force against civilians. Even the Department of Justice has begun to rely more on open information 

sources, such as media sources, to identify arrest-related deaths, rather than solely relying on law 

enforcement agencies to report deaths.98 Some researchers choose to aggregate police data sets in 

an attempt to obtain national data.99 Other researchers choose to compile related data sets such as 

using force and arrest data,100 national survey data,101 and national hospital admissions data102 in 

an attempt to determine excessive use of force rates. None of these strategies are without flaws. 

But Lorie Fridell, Associate Professor at the University of South Florida, states that analyzing 

information from more jurisdictions rather than fewer is certainly better, and having national data 

is the epitome of that aspiration.103

The lack of a comprehensive database can pose challenges for researchers, policy makers, 

community members, and police officials trying to investigate not only the scope of the problem, 

but also the potential causes for excessive use of force, and related civil rights issues. Regardless 

of which methodological strategy a researcher utilizes, variations between agencies, jurisdictions, 

and geography can be exceedingly complex. These variations can make it challenging to pin down 

why some studies have incongruent findings, especially in studies that are investigating if biases 

are a motivating factor in excessive use of force cases.104 Fridell examined seven different 

databases and found that these inconsistencies could reflect the “variation in the actual 

phenomenon across agencies and/or geographic areas or could reflect different research methods 

used to study the same phenomenon.”105

 

97 Blanks, Briefing Transcript at 198; Fritz Umbach, John Jay College of Criminal Justice, Briefing Transcript at 

305; John Shane, John Jay College of Criminal Justice, Briefing Transcript at 316; Klinger, Briefing Transcript at 

352. 

98 Duren Banks, Paul Ruddle, Erin Kennedy, and Michael Planty, Arrest-Related Deaths Program Redesign Study, 

2015-16: Preliminary Findings, U.S. Dep’t of Justice, Bureau of Justice Statistics, 2016, 

https://www.bjs.gov/content/pub/pdf/ardprs1516pf.pdf.

99 Justin Nix, Bradley Campbell, Edward Byers, Geoffrey Alpert, “A Bird’s Eye View of Civilians Killed by Police 

in 2015: Further Evidence of Implicit Bias,” Criminology & Public Policy, vol. 16 (2017), at 309-40. 

100 Goff, et al., The Science of Justice: Race, Arrests, and Police Use of Force, supra note 12. 

101 Roland Fryer, “An empirical analysis of racial differences in the use of force,” NBER Working Paper 22399, 

National Bureau of Economic Research, revised in 2018, http://www.nber.org/papers/w22399. 

102 Ted Miller, Bruce Lawrence, Nancy Carlson, Delia Hendrie, Sean Randall, Ian Rockett, Rebecca Spicer, “Perils 

of police action: A cautionary tale from US data sets,” Injury Prevention, vol. 23 (2017), at 27-32, 

http://injuryprevention.bmj.com/content/injuryprev/23/1/27.full.pdf. 

103 Lorie Fridell, “Explaining the Disparity in Results Across Studies Assessing Racial Disparity in Police Use of 

Force: A Research Note,” American Journal of Criminal Justice, vol. 42 (2016), at 502-13. 

104 Ibid. 

105 Ibid. 
 Introduction, Data, and Major Theoretical Perspectives 21 

Existing Data on Lethal and Non-Lethal Use of Force 

While many police departments around the country have worked to foster trust and create better 

relationships with community members, reported allegations about the inappropriate use of force, 

harassment, and misconduct continue to be substantial. These reports seem to have some support 

by the FBI’s Uniform Crime Report statistics showing that “justifiable homicides”106 committed 

by law enforcement are at a high level relative to the last two decades (see Chart 1). 

Chart 1: Justifiable Homicides, involving the killing of a suspected felon 

by a law enforcement officer in the line of duty

Source: FBI Uniform Crime Report, https://ucr.fbi.gov/crime-in-the-u.s, chart created by USCCR staff 

While the chart does show a steady increase in the number of justifiable homicides reported in the 

U.S., some of the increase may be due to efforts by some law enforcement agencies to have better 

reporting practices.107 These statistics may also suggest that the overall level of conflict between 

 

106 Justifiable homicide is “defined as and limited to: the killing of a felon by a peace officer in the line of duty and 

the killing of a felon, during the commission of a felony, by a private citizen.” See FBI: Uniform Crime Reporting,

“2015 Crime in the United States,” https://ucr.fbi.gov/crime-in-the-u.s/2015/crime-in-the-u.s.-2015/offenses-knownto-law-enforcement/expanded-homicide (last accessed Oct. 26, 2018). Further, according to reporters for the

Guardian, only 224 agencies (or approximately 1% of all agencies) reported a killing to the FBI in 2014. See Swaine 

and Laughland, “Eric Garner and Tamir Rice among those missing from FBI record of police killing,” supra note 

74. 

107 Analysis based on FBI’s Uniform Crime Reporting data obtained by the Guardian as reported in their October 

2015 article titled: Swaine and Laughland, “Eric Garner and Tamir Rice among those missing from FBI record of 

police killing,” supra note 74; Kevin Johnson, “FBI Will Overhaul Tracking Report and Add Missing Crimes,” USA 

Today, April 2, 2015, https://www.usatoday.com/story/news/nation/2015/04/02/fbi-crime-report/70393428/; Dara 

100

200

300

400

500

1995 2000 2005 2010 2015

Justifiable Homicides (1995‐2016)
22 Police Use of Force 

police and citizens has increased, even as trends in violent crime rates continue to decrease.108

Moreover, as many researchers, databases, and studies have pointed out, data reporting the 

numbers of citizens fatally shot by law enforcement each year do not convey the entire picture of 

police shootings.109 Thus, the data underreports the severity of the issue. Studies suggest when 

excessive force occurs, communities of color, transgender communities, the poor, and people with 

disabilities are groups of Americans who particularly bear the brunt of police force.110 

While there are many police departments and officers who actively work towards constitutional 

policing111 with better training, communication, and protocols, some officers—and sometimes 

whole units within departments or departments themselves—overstep their authority, disregard 

individuals’ civil rights, and cause entire communities to fear the same people sworn to protect 

them.112 

Disparities in Use of Force 

In the absence of full and complete data on the use of lethal and non-lethal force, which would 

include the demographics of all persons, this report utilizes a combination of academic and media 

sources to assess the extent of (and racial disparities in) excessive of force. Data collected by 

 

Lind, “The FBI is Trying to Get Better Data on Police Killings. Here’s What We Know,” Vox, April 10, 2015, 

https://www.vox.com/2014/8/21/6051043/how-many-people-killed-police-statistics-homicide-official-black (FBI 

altered its system of tracking police killings in 2015, this may have contributed to the shifts in reports of justifiable 

homicides). 

108 Trends in 5- and 10-year violent crime data show: 2015 total was 0.7% below 2011 and 16.5% below 2006; 2014 

total was 6.9% below 2010, and 16.2% below 2005. See FBI: Uniform Crime Reporting, “2015 Crime in the United 

States,” supra note 106. However, 2016 did see a 5.3% increase of violent crime according to the UCR’s JanuaryJune numbers. See FBI: Uniform Crime Reporting, “2016 Crime in the United States,” https://ucr.fbi.gov/crime-inthe-u.s/2016/preliminary-semiannual-uniform-crime-report-januaryjune-2016/tables/table-3 (last accessed Oct. 26, 

2018). At the time of this report, the FBI had only released preliminary data for 2017, and did not have statistics 

related to justifiable homicides. 

109 Davis and Lowery, “FBI director calls lack of data on police shootings ‘ridiculous,’ ‘embarrassing,’” supra note 

93. See e.g., Radley Balko, “Why It’s Important to Calculate the Percentage of Police Shootings That Are 

Legitimate,” Washington Post, July 14, 2016, https://www.washingtonpost.com/news/thewatch/wp/2016/07/14/why-its-impossible-to-calculate-the-percentage-of-police-shootings-that-arelegitimate/?noredirect=on&utm_term=.4dfd66524bba; Tiffany R. Murphy, When Numbers Lie: The UnderReporting of Police Justifiable Homicides, 21 BERKELEY J. CRIM. L. 42 (2016). 

110 See e.g., National Center for Transgender Equality, Reforming Police and Ending Anti-Transgender Violence, 

2015, at 24, https://transequality.org/sites/default/files/docs/resources/NCTE_Blueprint_June2015.pdf; German 

Lopez, “Police Shooting and Brutality in the US: 9 Things You Should Know,” Vox, May 6, 2017, 

https://www.vox.com/cards/police-brutality-shootings-us/us-police-racism; Elise Hansen, “The Forgotten Minority 

in Police Shootings,” CNN, Nov. 13, 2017, https://www.cnn.com/2017/11/10/us/native-lives-matter/index.html; Ted 

Miller, et al., supra notes 1-2. 

111 See Police Executive Research Forum, Constitutional Policing as a Cornerstone of Community Policing, U.S. 

Dep’t of Justice, Community Oriented Policing, 2015, at 1, https://ric-zai-inc.com/Publications/cops-p324-pub.pdf. 

112 See generally ibid. See e.g., Consent Decree, United States v. Police Dep’t of Baltimore City, et al., Case No. 

1:17-CV-00099-JKB (D. Md. Jan. 12, 2017), https://www.justice.gov/opa/file/925056/download; Complaint, State 

of Illinois v. City of Chicago, Case No. 17-CV-6260 (N.D. Ill. Aug. 29, 2017), 

http://chicagopoliceconsentdecree.org/wp-content/uploads/2018/01/City_of_Chicago_lawsuit_filedcomplaint.pdf. 
 Introduction, Data, and Major Theoretical Perspectives 23 

various sources show consistent patterns of racial disparities in police use of force. For instance, 

Guardian reporters found that although most police-involved killings in 2016 involved white 

people, death rates were much higher for black, Latino, and Native American people based on their 

percentage of the overall population (see Chart 2).113 Police-involved killings of white people 

occurred at a rate of 2.9 per million people versus 3.23 per million for Latino people, 6.66 per 

million for black people, and 10.13 per million for Native American people. This means that black 

and Native American people were fatally shot by officers―over twice and three times comparaed 

to white people, respectively114 (see Chart 2). 

Chart 2: Police-Involved Shootings 2016 

Source: https://www.theguardian.com/us-news/ng-interactive/2015/jun/01/the-counted-police-killingsus-database, chart created by USCCR staff 

Data collected by Guardian reporters also revealed pronounced racial disparities in the number of 

unarmed suspects killed by police in the first half of 2015. Thirty-two percent of black people 

killed by police in 2015 were unarmed, as were 25 percent of Latino people, compared to 15 

percent of white people.115 This means that while people of color make up fewer than 38 percent 

 

113 Due to the issues of data collection and reporting discussed above, these are the best data available and thus, do 

not represent true totals. See e.g., Guardian, “The Counted,” supra note 87. At the time of this report the Guardian 

did not have 2017 data available; Mapping Police Violence, https://mappingpoliceviolence.org/ (last accessed Oct. 

26, 2018); Washington Post, “Fatal Force: Police Shooting Database,” 

https://www.washingtonpost.com/graphics/2018/national/police-shootings-2018/?utm_term=.6e404ccf9b28 (last 

accessed Oct. 26, 2018); Center for Policy Equity, “National Justice Database,” http://policingequity.org/nationaljustice-database/ (last accessed Oct. 26, 2018). 

114 Ibid. 

115 Ibid. 

0

100

200

300

400

500

600

700

Police Shootings 2016 (totals)
24 Police Use of Force 

of the U.S. population, they make up almost 63 percent of unarmed people killed by police.116

According to data collected by the Washington Post, looking at the total number of unarmed people 

fatally shot that year, black men accounted for 40 percent, despite only representing approximately 

6 percent of the total US population.117 

Moreover, Mapping Police Violence found that officers were not charged with a crime in 99 

percent of the cases in 2015.118 Their research team also found that in 2017, relative to the overall 

U.S. population, black civilians whom police killed were more likely to be unarmed and less likely 

to be threatening someone compared to Latino and white people.119 Cody Ross, postdoctoral fellow 

at the Max Planck Institute, found that on average across counties in the U.S., an individual is as 

likely to be black, unarmed, and shot as being white, armed, and shot.120 

The Washington Post reported that some disparities seemed to have decreased in 2017, despite 

that year-to-year patterns overall remain consistent.121 Some suggest that national attention on 

excessive use of force may have contributed to the decrease in the number of unarmed civilians 

shot and killed each year—94 in 2015, 51 in 2016, and 68 in 2017—due to officers being more 

cautious in unarmed situations, as well as increased attention on de-escalation techniques for police 

officers.122 Yet, experts are uncertain why the annual total of civilians fatally shot tended to show 

little fluctuation (995 in 2015 compared to 987 in 2017). Geoff Alpert, professor at University of 

South Carolina, argues that: 

the numbers indicate that this is not a trend, but a robust measure of these shootings. 

We now have information on almost 3,000 shootings, and we can start looking to 

 

116 Jon Swaine, Oliver Laughland, and Jamiles Lartey, “Black Americans killed by police twice as likely to be 

unarmed as white people,” Guardian, June 1, 2015, https://www.theguardian.com/us-news/2015/jun/01/blackamericans-killed-by-police-analysis. 

117 Lowery, “Aren’t more white people than black people killed by police? Yes, but no,” supra note 5. Guardian

database combines reporting by staff with verified crowdsourced information. See Guardian, “The Counted,” supra

note 87. 

118 Mapping Police Violence, “There is no accountability,” https://mappingpoliceviolence.org/ (last accessed Nov. 3, 

2018). It is important to note that the original data source did not specify whether these homicides were justified. 

Mapping Police Violence’s data sources include three crowdsourced databases and some original research for 

verification purposes. See Mapping Police Violence, “About the Data,” 

https://mappingpoliceviolence.org/aboutthedata/ (last accessed Oct. 26, 2018). 

119 Mapping Police Violence, “2017 Police Violence Report,” https://policeviolencereport.org/ (last accessed Nov. 3, 

2018); Ibid. 

120 Ross, “A Multi-Level Bayesian Analysis of Racial Bias in Police Shootings at the County-Level in the United 

States, 2011-2014,” supra note 76 (emphasis in original). 

121 John Sullivan, Zane Anthony, Julie Tate, and Jennifer Jenkins, “Nationwide, police shot and killed nearly 1,000 

people in 2017,” Washington Post, Jan. 6, 2018, https://www.washingtonpost.com/investigations/nationwide-policeshot-and-killed-nearly-1000-people-in-2017/2018/01/04/4eed5f34-e4e9-11e7-ab50-

621fe0588340_story.html?utm_term=.997acf98c2f0. 

122 Ibid. 
 Introduction, Data, and Major Theoretical Perspectives 25 

provide the public with a better understanding of fatal officer-involved 

shootings.123 

In sum, while there are currently no definitive figures on how many people are fatally shot by the 

police every year, the data discussed above suggest striking differences when comparing race and 

socioeconomic status. In addition, data show that from 2010 to 2012, black men were 21 times 

more likely than their white peers to be killed by police.124 David Klinger posits that these 

disparities in the data could result from a “measurement error” that means unreported fatal 

shootings could alter the study’s results.125 However, he also stated that since the disparities are so 

significant, “I doubt the measurement error would account for that.”126 Reuben Fischer-Baum finds 

that fatal shootings by police tend to take place in neighborhoods that are more socioeconomically 

disenfranchised and have a higher percentage of black residents than the U.S. as a whole.127

Utilizing data collected by Guardian reporters on fatal police shootings combined with Census 

data, Fischer-Baum found that about 30 percent—139 of the 467 shootings (between January and 

June 2015)—occurred in census tracts that are in the bottom 20 percent nationally in terms of 

household income.128 Rob Arthur and colleagues further found that when examining both fatal and 

nonfatal incidents in the 50 largest local police departments, law enforcement shot at least 3,631 

people from 2010 to 2016, which is more than 500 people a year.129 However, those numbers do 

not account for the other over 700 incidents where officers fired on citizens but missed.130

Explanations for and Analysis of Rates of Police Use of Force 

Due to the sensitive and often politicized nature of this issue, discussions about police use of force 

often seem polarized, with law enforcement on one side and communities of color on the other. 

However, this severe polarization may not be a true or accurate reflection of the entire debate. This 

section of the Commission’s report first examines arguments about the “inevitability” of police 

violence by analyzing relevant data and leading expert opinions. It is followed by an evaluation of 

systemic perspectives regarding similar data, and a preliminary discussion of civil rights issues. 

 

123 Ibid. 

124 Ryan Gabrielson, Ryann Grochowski Jones, and Eric Sagara, “Deadly Force, in Black and White,” ProPublica, 

Oct. 10, 2014, https://www.propublica.org/article/deadly-force-in-black-and-white (discussing FBI data). 

125 Ibid. 

126 Ibid. 

127 Ben Casselman, “Where Police Have Killed Americans in 2015,” FiveThirtyEight, June 23, 2015, 

https://fivethirtyeight.com/features/where-police-have-killed-americans-in-2015/. 

128 Ibid. 

129 Arthur, et al., “Shot by Cops and Forgotten,” supra note 52. Vice News surveyed the 50 largest police 

departments, as determined by the Bureau of Justice Statistics, for records on officer-involved shootings. See also

Reaves, Local Police Departments, 2013: Personnel, Policies, and Practices, supra note 68. 

130 Arthur, et al., “Shot by Cops and Forgotten,” supra note 52. 
26 Police Use of Force 

Inevitability Argument 

Some scholars and advocates view police-involved shootings of people of color as an unfortunate, 

and possibly inevitable consequence of data-driven or “smart” policing strategies that result in 

aggressive police deployments in neighborhoods with high crime rates.131 Police deployments and 

these tactics are primarily driven by a police management philosophy and organizational 

management tool that one author has named “PerformanceStat.”132 These types of tools have 

informed such common (albeit controversial) crime reduction strategies as hot-spot policing and 

stop-and-frisk.

133 

One of the most common strategies utilized is hot-spot policing, which is a tactic used by a majority 

of U.S. police departments.134 While there is not a common definition for hot spots, they are 

generally thought of as “small places in which the occurrence of crime is so frequent that it is 

highly predictable, at least over a one year period.”135 Some argue that while hot-spot or placebased policing may be a proactive crime reduction strategy, this practice can reduce trust and 

diminish perceptions of legitimacy for communities who are targeted and result in negative 

outcomes for forging community-police relationships.136 For instance, “stop-and-frisk” is a 

 

131 Dennis P. Rosenbaum, “The Limits of Hot Spots Policing,” in Police Innovation: Contrasting Perspectives, 

David Weisburd and Anthony A. Braga (eds.), (2006) at 245-66; Tammy Rinehart Kochel, “Constructing Hot Spots 

Policing: Unexamined Consequences for Disadvantaged Populations and for Police Legitimacy,” Criminal Justice 

Policy Review, vol. 22 (2011), at 351-60, 

http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.897.6331&rep=rep1&type=pdf; Gloria Tso, “Police 

Brutality Is Not Invisible,” The Hill, Jan. 14, 2016, http://thehill.com/blogs/congress-blog/civil-rights/265795-

police-brutality-is-not-invisible; Lawrence Rosenthal, “CPD can balance aggressive patrols, proactive tactics,” 

Chicago Tribune, Sept. 8, 2016, http://www.chicagotribune.com/news/opinion/commentary/ct-shootings-policeviolence-tactics-crime-perspec-0909-jm-20160908-story.html. 

132 Robert D. Behn, The Seven Big Errors of PerformanceStat, Harvard University, John F. Kennedy School of 

Government, 2008, https://www.hks.harvard.edu/sites/default/files/centers/taubman/files/performancestat.pdf, at 2 

(using the same nomenclature as other similar management tools, Behn describes as a “performance strategy” that 

includes “an ongoing series of regular, frequent, periodic, integrated meetings during which the chief 

executive . . . use data to analyze the unit’s past performance, to follow-up on previous decisions and commitments 

to improve performance, to establish its next performance objectives, and to examine the effectiveness of its overall 

performance strategies”). 

133 David Weisburd, “Does Hot Spots Policing Inevitably Lead to Unfair and Abusive Police Practices, or Can We 

Maximize Both Fairness and Effectiveness in the New Proactive Policing?” University of Chicago Legal Forum

(2016), 661-89, https://chicagounbound.uchicago.edu/uclf/vol2016/iss1/16/. See also Floyd v. City of New York, 959 

F. Supp. 2d 540 (S.D.N.Y 2013) (holding that stop and frisk targeting “high crime neighborhoods” in New York 

disproportionately targeted black and Latino citizens and violated the Fourth and Fourteenth Amendments). 

134 Anthony Braga, Andrew V. Papachristos, and David M. Hureau, “The Effects of Hot Spots Policing on Crime: 

An Updated Systematic Review and Meta-Analysis,” Justice Quarterly (2012), at 4, 

https://www.tandfonline.com/doi/abs/10.1080/07418825.2012.673632. 

135 Lawrence Sherman, “Hot Spots of Crime and Criminal Careers of Places,” in John Eck and David Weisburd, 

(eds.), Crime and Place, Police Executive Research Forum, at 36, 

https://pdfs.semanticscholar.org/580e/0a9a216444faf0db9592df45076fac297d50.pdf. 

136 Tammy Rinehart Kochel, George Burrus, David Weisburd, St. Louis County Hot Spots in Residential Areas 

(SCHIRA) Final Report: Assessing the Effects of Hot Spots Policing Strategies on Police Legitimacy, Crime, and 

Collective Efficacy, U.S. Dep’t of Justice, 2016, https://www.ncjrs.gov/pdffiles1/nij/grants/249747.pdf; Jennifer 
 Introduction, Data, and Major Theoretical Perspectives 27 

strategy where police officers detain and frisk civilians based on the officers’ belief the civilians 

pose a safety risk.137 Though widely in use in some jurisdictions,138 at least one court held that the 

practice as carried out in New York was unconstitutional due to evidence of racial discrimination 

and bias.139 This was due to individuals being targeted whether or not they were guilty of 

committing a crime. Subsequent reports noted there were a higher number of arrests, but fewer 

convictions in these areas.140

Still, some advocates of these tactics praise this performance strategy—originating in New York, 

then known as CompStat—for its steep reductions in urban crime.141 According to them, many 

large, urban, data-minded police departments are laser-focused on locations where people are most 

being victimized, which are often “poor minority neighborhoods.”142 Other advocates criticize this 

approach. They argue that not only are these strategies not effective due to many errors in the 

adaptations of the program,143 but also, video evidence shows blatant police excessive force.144

These advocates argue that policing strategies based on this philosophy do not necessarily reduce 

criminal activity, and that officials need to establish a cause-and-effect connection between their 

actions and their results, which is difficult when it comes to the matter of excessive use of force.145

For instance, in a study based on New York Police Department crime statistics, researchers found 

that when officers refrained from engaging in proactive tactics (e.g., hot-spot policing), which 

 

Fratello, Andres Rengifo, and Jennifer Trone, Coming of Age with Stop and Frisk: Experiences, Self-Perceptions, 

and Public Safety Implications, Vera Institute of Justice, 2013, https://www.vera.org/publications/coming-of-agewith-stop-and-frisk-experiences-self-perceptions-and-public-safety-implications; Tom Tyler, Jeffrey Fagan, and 

Amanda Geller, “Street stops and police legitimacy: Teachable Moments in Young Urban Men’s Legal 

Socialization,” Journal of Empirical Legal Studies, vol. 11 (2014), 751-85, 

http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5987&context=fss_papers; Jacinta Gau and Rod 

Brunson, “Procedural Justice and Order Maintenance Policing: A Study of Inner-City Young Men’s Perceptions of 

Police Legitimacy,” Justice Quarterly, vol. 27 (2009), 255-79, 

http://cw.routledge.com/textbooks/9780415884433/instructorManual/data/Gau,%20Brunson%20-

%20Procedural%20justice%20and%20order.pdf. 

137 Becca James, “Stop and Frisk in 4 cities: The Importance of Open Police Data,” Sunlight Foundation, Mar. 2, 

2015, https://sunlightfoundation.com/2015/03/02/stop-and-frisk-in-4-cities-the-importance-of-open-police-data-2/. 

138 Ibid. 

139 Floyd, 959 F. Supp. 2d at 660-64. 

140 New York Civil Liberties Union, “Annual Stop-and-Frisk Data,” https://www.nyclu.org/en/stop-and-frisk-data 

(last accessed Oct. 27, 2018); Eric Schneiderman, A Report on Arrests Arising from the New York City Police 

Department’s Stop-And-Frisk Practices, New York State Office of the Attorney General, 2013, 

http://www.ag.ny.gov/pdfs/OAG_REPORT_ON_SQF_PRACTICES_NOV_2013.pdf. 

141 See, e.g., Heather Mac Donald, The Manhattan Institute, Briefing Transcript at 303-04. 

142 Ibid. at 304. 

143 Behn, The Seven Big Errors of PerformanceStat, supra note 132. 

144 Sarah Almukhtar, Mercy Benzaquen, Damien Cave, Sahil Chinoy, Kenan Davis, Josh Keller, K.K. Rebecca Lai, 

Jasmine C. Lee, Rochelle Olivery, Haeyoun Park, Detinee-Charisse Royal, “Black Lives Upended by Policing: The 

Raw Videos Sparking Outrage,” New York Times, Apr. 19, 2018, 

http://www.nytimes.com/interactive/2015/07/30/us/police-videos-race.html?_r=0. 

145 Behn, The Seven Big Errors of PerformanceStat, supra note 132 at 6-7. 
28 Police Use of Force 

meant that there was a drop in low-level police activity, civilian complaints of major crimes 

dropped by about 3 to 6 percent during the slowdown.146 

As a potential strategy to improve this technology and rebuild community trust, the Vera Institute 

partnered with the Police Foundation to develop a new program, CompStat360, which was released 

as a pilot in March 2018.147 According to the Vera Institute, the goal of this program is to increase 

data collection on police practices, and provide better training and assistance to police agencies. 

Rebecca Neusteter, director of the Vera Institute’s Policing Program stated that “[l]ongstanding 

fractured relationships between police and many communities—particularly communities of 

color—and an overreliance on punitive enforcement, especially for minor transgressions, has 

resulted in a recurring adversarial dynamic.”148 Thus, Vera’s Policing Program hopes that 

CompStat360 can be “a tool that will help shift policing culture” to be one “that delivers and 

rewards public safety through community engagement and satisfaction.”149 

Poverty and violence are often cited as reasons why black and Latino civilians are 

disproportionately victims of fatal police shootings. Panelists at the Commission’s briefing 

discussed the intersection of poverty and violence from differing perspectives. Some scholars 

argued that poverty, violent crime, and police shootings are and have been intertwined, meaning 

that persons who live in high-poverty communities will inevitably experience increased rates of 

police violence so long as police are doing their jobs.150 Another view is that police presence can 

be positive, and community members ask for and want police present to help protect their 

communities. These advocates argue that—with more effective community engagement—police 

can safeguard communities and decrease crime.151 

Testimony before the Commission from Heather Mac Donald of the Manhattan Institute defended 

increased police use of force among communities of color as follows: 

 

146 Law enforcement cannot legally go on strike, thus the NYPD chose to “work-to-rule,” meaning that they 

intended to fulfill only the most necessary duties. For instance, they only responded to calls in pairs, only left their 

squad cars if they felt compelled, and did not perform certain “proactive policing tactics” such as leaving their 

vehicles to issue summonses or arrest people for petty crimes and misdemeanors. The authors also noted that 

“concerns about under reporting do not nullify the results . . . but [they] do complicate a strict causal interpretation 

of our results.” Christopher Sullivan and Zachary O’Keeffe, “Evidence that curtailing proactive policing can reduce 

major crime,” Nature Human Behaviour, vol. 1 (2017), 730-37. 

147 CompStat360, “Welcome to CompState360,” https://www.compstat360.org/ (last accessed Oct. 27, 2018). See

also Lindsey Price Jackson, “50 Years of Police Militarization Against Communities of Color,” Vera Institute of 

Justice, April 23, 2018, https://www.vera.org/blog/two-societies/50-years-of-police-militarization-againstcommunities-of-color. 

148 Ibid. 

149 Ibid. 

150 Mac Donald, Briefing Transcript at 300-01. 

151 Ebony Ruhland, Robina Institute, testimony before the Minnesota State Advisory Committee to the U.S. 

Commission on Civil Rights, hearing, Minneapolis, MN, March 21, 2017, transcript at 57-64 [hereinafter Minnesota 

Hearing Transcript]. 
 Introduction, Data, and Major Theoretical Perspectives 29 

[T]he police have an indefeasible obligation to treat everyone with courtesy and 

with respect and within the confines of the law, but while we need to make sure 

that the police are properly trained in the constitution and courtesy, there is a larger 

reality behind the issue of policing and raids that remains a taboo topic, and that is 

black crime. Unless we bring down the black crime and victimization rates, policing 

is going to be heaviest in black neighborhoods, increasing the chances that when 

an officer’s use of force goes awry, it will have a black subject.152 

Other experts argue that this line of reasoning is inconsistent with empirical evidence about innercity violence and police-involved killings of people of color. First, these experts argue, focusing 

the conversation on crime rates as opposed to examining the structural reasons (e.g., segregation, 

underemployment, poverty, health disparities) for the high rates of crime ignores not only the 

social context in which crime occurs, but also the systemic issues that allow for the continuation 

of the problem.153 Second, experts also argue that bias may be increased by media outlets 

reinforcing the narrative of particular criminality by presenting African-American and Latino 

people differently than white people—both quantitatively and qualitatively.154 News programs and 

newspapers over-represent people of color as crime suspects and white people as crime victims.155

Reporters may use language such as “black-on-black crime”, but rarely phrase violent crime as 

“white-on-white crime”; this gives the impression that violent crime is more prevalent and 

uniquely an issue within the black community.156 In media representations: 

Black and Latino suspects were also more often presented in a non-individualized 

way than whites—by being left unnamed—and were more likely to be shown as 

threatening—by being depicted in physical custody of police.157 

Further, researchers with The Sentencing Project found when analyzing the public’s perception of 

crime that: 

 

152 Mac Donald, Briefing Transcript at 300. 

153 Robert Sampson, “The Place of Context: A Theory and Strategy for Criminology’s Hard Problems,” 

Criminology, vol. 51 (2013); Jeffery Ulmer, Casey Harris, Darrell Steffensmeier, “Racial and Ethnic Disparities in 

Structural Disadvantage and Crime: White, Black, and Hispanic Comparisons,” Social Science Quarterly, vol. 93 

(2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4097310/; Paul Heideman and Jonah Birch, “The Poverty 

of Culture,” Jacobin, 2014, https://www.jacobinmag.com/2014/09/the-poverty-of-culture/. 

154 Nazgol Ghandnoosh and Christopher Lewis, “Race and Punishment: Racial Perceptions of Crime and Support for 

Punitive Policies,” The Sentencing Project, 2014, at 22-23, https://www.sentencingproject.org/wpcontent/uploads/2015/11/Race-and-Punishment.pdf. 

155 Ibid. at 13-14.

156 Gary Younge, “About ‘Black-on-Black Crime,’” The Nation, Dec. 9, 2014, 

https://www.thenation.com/article/about-black-black-crime/. 

157 Ghandnoosh and Lewis, “Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies,” 

supra note 154 at 23. 
30 Police Use of Force 

White Americans overestimate the proportion of crime committed by people of 

color, and associate people of color with criminality. For example, white 

respondents in a 2010 survey overestimated the actual share of burglaries, illegal 

drug sales, and juvenile crime committed by African Americans by 20-30%. In 

addition, implicit bias research has uncovered widespread and deep-seated 

tendencies among whites—including criminal justice practitioners—to associate 

blacks and Latinos with criminality.158

Criminologists have found that the fact that most law enforcement are native-born citizens who 

have been exposed to these messages has an effect, and these messages become part of their 

ingrained perception on race.159 Furthermore, these messages are not isolated to the media and 

news reports. Stereotypes and biased ideas about African Americans and Latinos are frequently 

part of the socializing messages young officers receive in training and by more seasoned 

officers.160 For instance, many officers are initiated early on with an “us versus them” mentality 

when it comes to communities of color: 

It was not uncommon to hear things like ‘he may beat the rap but he won’t beat the 

ride’ when a fellow officer would make a questionable arrest. I also was taught that 

‘POP’ (short for pissing off the police) was apparently an arrestable offense. This 

was the culture I saw from the inside looking out.161 

Third, experts argue, based on disparities in police stops, in prosecutorial charging, and in bail and 

sentencing decisions, that: 

Implicit racial bias has penetrated all corners of the criminal justice system. 

Moreover, policies that are race-neutral on their surface—such as ‘hot spot’ 

policing and certain risk assessment instruments—have targeted low-income 

people of color for heightened surveillance and punishment.162 

In her testimony to the Commission, Delores Jones-Brown from the Department of Law, Police 

Science, and Criminal Justice at the John Jay College of Criminal Justice also challenged the notion 

that black neighborhoods are inherently more violent than other neighborhoods, and thus the driver 

for excessive force statistics. Jones-Brown states that in some years during the past decade, the 

 

158 Ibid. at 3. 

159 Michael Smith and Geoffrey Alpert, “Explaining Police Bias: A Theory of Social Conditioning and Illusory 

Correlation,” Criminal Justice and Behavior, vol. 34 (2007); see also German Lopez, “How systemic racism 

entangles all police—even black cops,” Vox, Aug. 15, 2016, https://www.vox.com/2015/5/7/8562077/police-racismimplicit-bias. 

160 Philip Holloway, “Policing: It’s not us against them,” CNN, May 27, 2015, 

https://www.cnn.com/2015/05/27/opinions/holloway-cleveland-policing-us-against-them/index.html. 

161 Ibid. 

162 Ghandnoosh and Lewis, “Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies,” 

supra 154 note at 4. 
 Introduction, Data, and Major Theoretical Perspectives 31 

number of homicide arrests was the same for both black and white civilians, thus challenging the 

argument that violence in black neighborhoods can account for the disparate rates of fatal police 

shootings.163 

Further, data show that the level of intra-racial violence for black victims (excluding murder) was 

only slightly higher than the level of intra-racial for white victims (62.2 percent vs. 56.0 percent, 

respectively), and the difference in inter-racial violence between these two groups was even less 

(black on white violence―13.7 percent versus white on black violence―10.4 percent).164 

It is important to acknowledge that the high crime rates and violence that occur in high-poverty, 

inner-city neighborhoods do increase the likelihood of police-civilian interactions.165 However, 

the argument of “black-on-black crime” as a justification for excessive use of force needs to be 

addressed for any type of reform to happen.166 Goff et al., relay that: 

[T]o the degree that there is a dominant narrative among police executives about 

racial disparities in use of force, it is the same as the dominant narrative around 

racial disparities in policing in general: They are unfortunate, they are 

unintentional, and they stem mostly from racial disparities in crime rates.167 

Many law enforcement support and further this narrative. For instance, Chief Ed Flynn of the 

Milwaukee Police Department argues that: 

If I draw an ellipse over our poorest neighborhoods and then find an ellipse and 

draw it where most of our 911 calls are, and then draw the ellipse over where most 

of our crime victims are . . . it’s the same neighborhoods and the same zip codes.168 

Bernard Parks, the former chief of the Los Angeles Police Department stated that: 

 

163 See Delores Jones-Brown, Department of Law, Police Science, and Criminal Justice, John Jay College of 

Criminal Justice, Briefing Transcript at 192. She stated that in 2011, there were approximately 4,000 whites and 

4,000 blacks arrested for homicide. 

164 Heather Mac Donald, “The Shameful Liberal Exploitation of the Charleston Massacre,” National Review, Jul. 1, 

2015 (citing data provided by the National Crime Victimization Survey, which excludes homicides), 

http://www.nationalreview.com/article/420565/charleston-shooting-obama-race-crime. 

165 See Devon Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 GEO. L.J. 1479, 

1481-82 (2016); Charles Epp, Steven Maynard-Moody, Donald Haider-Markel, Pulled Over: How Police Stops 

Define Race and Citizenship (Chicago: University of Chicago Press, 2014), at 9-10; Angela J. Davis, ed., Policing 

the Black Man: Arrests, Prosecution, and Imprisonment (New York: Pantheon Books, 2017). 

166 Paul Butler, Chokehold: Policing Black Men (New York: The New Press, 2017), at 117. 

167 Goff et al., The Science of Justice: Race, Arrests, and Police Use of Force, supra note 12 at 5. 

168 Mitch Teich, “Chief Flynn Says Policing Not the Cause of High Rate of Black Male Incarceration,” WUWM: 

Milwaukee Public Radio, Dec. 20, 2013, http://www.wuwm.com/post/chief-flynn-says-policing-not-cause-high-rateblack-male-incarceration#stream/0. 
32 Police Use of Force 

It’s not the fault of the police when they stop minority males or put them in jail. It’s 

the fault of the minority males for committing the crime. In my mind, it is not a 

great revelation that, if officers are looking for criminal activity, they're going to 

look at the kind of people who are listed on crime reports.169

The “black-on-black” crime narrative as an explanation for police excessive use of force disregards 

the structural and historical issues that formed these neighborhoods, as well as the social and 

economic factors that currently sustain them. Paul Butler explains that the violence in black 

communities is a symptom of historic discrimination, brutal policing practices, and mass 

incarceration.170 Thus, if we want to decrease “black-on-black crime” we first need to address the 

systemic issues that maintain it. Paul Butler posits that: 

Two factors explain what’s going in places like Chicago, Baltimore, Los Angeles—

if you have high-poverty, segregated neighborhoods and easy access to guns, that’s 

a recipe for violence. The reason why white men don’t commit some street crimes 

at the same level as black men is about the privilege that they have, even as lowincome white folks, to not live in these areas. So, if we look at the data, white poor 

people live in areas that are much closer to middle-class people than black poor 

people do.171

While some neighborhoods statistically have more incidents of violence, the “black-on-black 

crime” narrative does not reflect how these concentrations of poverty developed; how this narrative 

results in incorrect ideas, beliefs, and stereotypes about black people and black criminality more 

broadly; or how these statistics are internalized by law enforcement.172 Butler argues that in order 

to address the issue of “black-on-black crime,” structural, institutional remedies are necessary. For 

instance, implementing federal policies and programs intended to help people move out of 

concentrations of high-poverty areas would be one of the first steps to decrease the crime rate in 

black communities.173 

This narrative is also problematic because there is not an empirically sound way to “take a true 

measure of criminality within a population.”174 Therefore, it becomes difficult for researchers to 

 

169 Goff et al., The Science of Justice: Race, Arrests, and Police Use of Force, supra note 12 at 5 (citing Jack Glaser, 

Suspect race: Causes and consequences of racial profiling, (Oxford, UK: Oxford University Press, 2014, at 96)). 

170 Butler, Chokehold: Policing Black Men, supra note 166 at 119. 

171 Bill Moyers, “Michelle Alexander and Paul Butler Talking About ‘Chokehold: Policing Black Men,’” an event 

presented in conjunction with The Legacy of Lynching: Confronting Racial Terror in America by the Brooklyn 

Museum and the Equal Justice Institute, October 16, 2017, https://billmoyers.com/story/paul-butler-policing-blackmen/. 

172 Ibid. 

173 Butler, Chokehold: Policing Black Men, supra note 166 at 145-46; see also Jill Leovy, Ghettoside: A True Story 

of Murder in America (New York: Spiegel & Grau, 2015), at 58 (noting a Los Angeles detective’s view that 

“catching killers built law—that successful homicide investigations were the most direct means at the cops’ disposal 

of countering [ ] informal self-policing and street justice . . .”). 

174 Goff et al., The Science of Justice: Race, Arrests, and Police Use of Force, supra note 12 at 5. 
 Introduction, Data, and Major Theoretical Perspectives 33 

have an accurate measure of bias that may be occurring in a police department. Researchers argue 

that the “nearest approximation [of criminality] is problematic” since 

arrest data, which provide the closest estimate of criminal activity within a 

population (short of direct observation), are compromised by the very nature of who 

makes arrests. That is, because police arrest people and our concern is with the 

possibility that police behave in a biased manner when applying force, there is the 

strong likelihood that arrest data would be biased in the same manner as use of force 

data.175 

Furthermore: 

[T]he dominant narrative has been that this happens to African-Americans because 

they are arrested in disproportionate numbers . . . But the data really makes it 

difficult to say that crime is the primary driver of this. In every single category, the 

anti-black disparity persists.176 

In sum, relying upon arrest data alone to understand use of force data “likely 

underestimates the level of bias that may exist in police use of force.”177

There is even further relevant research that debunks the correlation of crime rates and excessive 

use of force tactics against people of color. For example, researchers have consistently found no 

correlation between the level of violent crime in a city and that city’s rate of fatal police 

shootings.178 Fewer than one in three black people killed by police in 2016 were suspected of a 

violent crime, or armed.179 Researchers also found that even though officers use force in less than 

2 percent of all civilian interactions, the use of force against black people is disproportionately 

high—more than three times greater, relative to white people.180 At the very least, these findings 

indicate that no considerable difference exists between the level of violence between black people 

 

175 Ibid. 

176 Timothy Williams, “Study Supports Suspicion That Police Are More Likely to Use Force on Blacks,” New York 

Times, July 7, 2016 (citing Phillip Atiba Goff), https://www.nytimes.com/2016/07/08/us/study-supports-suspicionthat-police-use-of-force-is-more-likely-for-blacks.html. 

177 Goff et al., The Science of Justice: Race, Arrests, and Police Use of Force, supra note 12 at 5. 

178 Mapping Police Violence, https://mappingpoliceviolence.org/ (last accessed Oct. 27, 2018); Goff et al., The 

Science of Justice: Race, Arrests, and Police Use of Force, supra note 12 at 18; Ross, “A Multi-Level Bayesian 

Analysis of Racial Bias in Police Shootings at the County-Level in the United States, 2011-2014,” supra note 76. 

179 Mapping Police Violence, https://mappingpoliceviolence.org/ (last accessed Oct. 27, 2018); Goff et al., The 

Science of Justice: Race, Arrests, and Police Use of Force, supra note 12. 

180 Goff et al., The Science of Justice: Race, Arrests, and Police Use of Force, supra note 12 at 23; Ross, “A MultiLevel Bayesian Analysis of Racial Bias in Police Shootings at the County-Level in the United States, 2011-2014,” 

supra note 76. 
34 Police Use of Force 

and white people to warrant the heavy-handed law enforcement response that many policing 

advocates argue is necessary.181 

The Center for Policing Equity researchers found that even after controlling for racial disparities 

in crime rates, African Americans were far more likely than white people to be victims of excessive 

force by law enforcement.182 It is true that due to the combination of high crime rates in 

impoverished areas and the history of institutional racism, African Americans are more likely to 

have more interactions with police officers.183 More interactions would logically increase the 

likelihood of being a victim of excessive police force. At the same time, more interactions with 

police does not necessarily lead to more excessive force incidents; since the issue is not police 

presence, it is the behavior and actions officers engage in during these interactions that are the 

issue. UCLA Law Professor Devon Carbado makes this point clearly: 

[Sandra] Bland’s death, like [Walter] Scott’s, is an example of how an ordinary 

traffic stop can be a gateway to extraordinary police violence . . . Bland was 

vulnerable to extreme forms of police violence the very moment she got into her 

car.184 

 

181 See e.g., Christian Davenport, Sarah A. Soule, and David A. Armstrong II, “Protesting While Black?: The 

Differential Policing of American Activism, 1960 to 1990,” American Sociological Review, vol. 76 (2011); Regional 

News Network, “Stop and Frisk: Good Crime Fighting Policy Says Top Chief,” RNN, 2015, 

http://www.rnntv.com/content/stop-and-frisk-good-crime-fighting-policy-says-top-chief; Mona Lynch, Marisa 

Omori, Aaron Roussell, Matthew Valasik, “Policing the ‘progressive’ city: The racialized geography of drug law 

enforcement,” Theoretical Criminology, vol. 17 (2013), at 335-57, 

http://journals.sagepub.com/doi/abs/10.1177/1362480613476986; Amanda Taub, “Why America’s police forces 

look like invading armies,” Vox, Aug. 19, 2014, https://www.vox.com/2014/8/14/6003239/police-militarization-inferguson. 

182 Goff et al., The Science of Justice: Race, Arrests, and Police Use of Force, supra note 12 at 19-27. 

183 Charles Epp, Steven Maynard-Moody, Donald Haider-Markel, Pulled Over: How Police Stops Define Race and 

Citizenship (Chicago: University of Chicago Press, 2014), at 93-113; German Lopez, “Police shootings and brutality 

in the U.S.: 9 things you should know,” supra note 110. 

184 Devon Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to 

Police Violence, 105 CALIF. L. REV. 125, 150 (2017). Sandra Bland was found dead of apparent suicide in a jail cell 

in July 2015 after her arrest for a contested traffic stop. After her death, many people protested that the stop and the 

escalation to arrest were unnecessary. The arresting officer was fired, and Ms. Bland's family settled a lawsuit with 

Waller County, Texas for $1.9 million. See, e.g., St. John Barned-Smith, “What we've learned from Sandra Bland's 

death, two years later,” Houston Chronicle, July 13, 2017, https://www.chron.com/news/houston-texas/article/Twoyears-later-Sandra-Bland-s-suicide-still-11287622.php; James Queally, “What happened to Sandra Bland before she 

died in a Texas Jail?” Los Angeles Times, July 28, 2015, http://www.latimes.com/nation/nationnow/la-na-nn-sandrabland-20150728-htmlstory.html. Walter Scott was shot in the back in April 2015 while running away from a police 

officer following a traffic stop. The shooting was videotaped by a bystander and received national attention. The 

officer pleaded guilty to civil rights offenses and was sentenced to 20 years in prison for the underlying offense of 

second-degree murder. See Alan Blinder, “Michael Slager, Officer in Walter Scott Shooting Gets 20-Year 

Sentence,” New York Times, Dec. 7, 2017, https://www.nytimes.com/2017/12/07/us/michael-slager-sentence-walterscott.html; Barney Blakeney, “Former North Charleston Police Officer Pleads to Violating Walter Scott's Civil 

Rights in Shooting Incident,” The Charleston Chronicle, May 3, 2017, 

https://www.charlestonchronicle.net/2017/05/03/former-north-charleston-police-officer-pleads-to-violating-walterscotts-civil-rights-in-shooting-incident/. 
 Introduction, Data, and Major Theoretical Perspectives 35 

And the current data support his claim. For instance, Arthur et al. found that one-fifth of the 

shootings involving African Americans in their study began as a pedestrian or traffic stop, 

compared to the 16 percent for white suspects.185 

Moreover, studies have found that there are also racial disparities in the severity of force used by 

law enforcement.186 The Center for Policing Equity found that when examining these disparities 

across six categories (i.e., lethal, less lethal and Taser, canine, weapon, OC spray, and hands and 

body) the average rate of force used against black civilians was higher than that for white civilians 

in all categories, except the use of lethal force, when controlling for arrests for all offenses.187 And 

when analyzing both the number of interactions with officers and the severity of the action used at 

the time of arrests, the researchers found that African Americans have a “force score”188 that is 

roughly 3.8 times higher than that for whites.189 

Another argument that attempts to explain the charges of excessive force is based on the belief that 

law enforcement are under attack by civilians. While policing is a difficult and dangerous 

profession, research shows that law enforcement fatalities are at historical lows (see Chart 3). 

 

185 Arthur, et al., “Shot by Cops and Forgotten,” supra note 52. 

186 Goff et al., The Science of Justice: Race, Arrests, and Police Use of Force, supra note 12 at 19-27. 

187 Ibid. at 13. 

188 Ibid. at 20-25. Researchers used a weighted calculation that included the combination of the number of 

interactions with law enforcement and the severity of the force used at the encounter—with more severe force on the 

continuum being weighted more heavily than less severe force. It is important to note that this study is consistent 

with other studies and investigations that show that white civilians have higher numbers of police-involved fatalities 

overall. However, when population size is considered, the percentage and rate of black fatalities are higher than 

those of white people. 

189 Ibid. at 23. 
36 Police Use of Force 

Chart 3: Law Enforcement Fatalities 

Source: Factcheck.org run by the Annenberg School for Communication at the 

University of Pennsylvania 

Data from the Officers Down Memorial Page—which tracks police deaths in real time—shows 

that since the 1980s, the average number of police killed in the line of duty has continued to 

decrease year after year.190 The National Law Enforcement Officers Memorial Fund has also found 

that fatal shootings of officers have generally declined.191 The Fund provides annual data for a 13-

year period, starting from 2005 to 2017. According to the Fund, “[f]irearm-related fatalities peaked 

in 1973, with 84 officers shot and killed that year. Since then, the annual average has decreased 

from 63 in the 1970s to 29 in the 2000s.”192 The Fund found that the “42 firearms-related fatalities 

in 2015 are 26 percent lower than the average of 57 per year for the decade spanning 2000-

2009.”193 The numbers peaked to 73 in 2011 and dropped to 43 in 2017 (see Chart 4 below). Thus, 

the annual average was 51.88 from 2009 to 2017, compared to 56.25 from the previous four years. 

 

190 Officer Down Memorial Page, Inc., “Remembering All of Law Enforcement’s Heroes,” https://www.odmp.org/ 

(reports number of police officer fatalities every year) (last accessed Oct. 27, 2018). 

191 National Law Enforcement Officers Memorial Fund, “Facts and Figures: Death, Assaults and Injuries,” 

http://www.nleomf.org/facts/officer-fatalities-data/daifacts.html (last accessed Oct. 27, 2018). 

192 Firearm data is isolated here because it was the leading killer of officers in 2016, and tends to kill more officers 

every year, compared to other methods (e.g., assaults, bombings, vehicle, etc.), although 2017 data show that trafficrelated fatalities were the leading cause officer death. National Law Enforcement Officers Memorial Fund, 

Preliminary 2017 Law Enforcement Officer Fatalities Report, 2017, 

http://www.nleomf.org/assets/pdfs/reports/fatality-reports/2017/2017-End-of-Year-Officer-FatalitiesReport_FINAL.pdf. 

193 Eugene Kiely, “Killed in the Line of Duty,” FactCheck.org, July 13, 2016, 

http://www.factcheck.org/2016/07/killed-in-the-line-of-duty/ (citing the National Law Enforcement Officers 

Memorial Fund, “Facts and Figures: Death, Assaults and Injuries,” supra note 191). 
 Introduction, Data, and Major Theoretical Perspectives 37 

As of December 2017, 128 law enforcement (federal, state, and local) officers died in the line of 

duty that year, which was a decrease of 10 percent from 2016.194 

These statistics may be surprising because of recent incidents that resulted in the death of several 

officers, e.g., in 2016 five officers were killed and nine were injured in Dallas.195 But UCR research 

shows that these types of ambushes against law enforcement are extremely rare.196 After the 2016 

Dallas incident, several media outlets released reports stating that the rate of officers killed in the 

line of duty was up by almost 45 percent.197 This type of reporting is misleading, because the 

annual number of officers killed is so low, the Dallas incident greatly skewed the percentage.198

While any police officer killed in the line of duty is tragic, analyzing the numbers demonstrates 

that there is not an overall uptick on aggression towards law enforcement (see Charts 4, 5, and 6). 

 

 

194 National Law Enforcement Officers Memorial Fund, Preliminary 2017 Law Enforcement Officer Fatalities 

Report, supra note 192. 

195 Joel Achenbach, William Wan, Mark Berman, Moriah Balingit, “Five Dallas police officers were killed by a long 

attacker, authorities say,” Washington Post, July 8, 2016, https://www.washingtonpost.com/news/morningmix/wp/2016/07/08/like-a-little-war-snipers-shoot-11-police-officers-during-dallas-protest-march-killingfive/?utm_term=.9b7790739778 (reporting the incident on July 7, 2016, where Micah Xavier Johnson killed five 

officers and injured nine others). 

196 See FBI: Uniform Crime Reporting, “Law Enforcement Officers Killed and Assaulted 2017: Summaries of 

Officers Feloniously Killed,” https://ucr.fbi.gov/leoka/2017/resource-pages/felonious-summaries (last accessed Nov. 

4, 2018); see also Dara Lind, “What we know about attacks on police,” Vox, July 8, 2016, 

https://www.vox.com/2014/12/22/7430943/police-killed-statistics. 

197 See e.g., Gregg Zoroya, “26 police killed so far in 2016, up 44% from 2015,” USA Today, July 8, 2016, 

https://www.usatoday.com/story/news/nation/2016/07/08/nationwide-police-shooting-deaths/86861082/ Max 

Kutner, “Number of Fatal Shootings of Police Officers is up 44 Percent,” Newsweek, July 8, 2016, 

http://www.newsweek.com/number-police-killed-increase-dallas-478901. 

198 Christopher Ingraham, “Police are safer under Obama than they have been in decades,” Washington Post, July 9, 

2016, https://www.washingtonpost.com/news/wonk/wp/2016/07/09/police-are-safer-under-obama-than-they-havebeen-in-decades/?utm_term=.9f4fa4de2beb; see also Eugene Volokh, “Fatal shootings of police officers up from 

last year—but same as the average rate for 2005 to 2015,” Washington Post, July 8, 2016, 

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/07/08/fatal-shootings-of-police-officers-upfrom-last-year-but-at-the-average-rate-for-2005-to-2015/?tid=a_inl&utm_term=.1b5582f5cb08. 
38 Police Use of Force 

Chart 4: Firearms-Related Fatalities 

Source: National Law Enforcement Officers Memorial Fund,199 chart recreated by USCCR staff 

Further, the data presented on Chart 5 (which includes the average number of police fatalities due 

to shootings, stabbings, assaults, bombings, and vehicular assaults) suggest that intentional attacks 

against law enforcement are at historically low levels.200

 

 

199 National Law Enforcement Officers Memorial Fund, “Facts and Figures: Causes of Law Enforcement Deaths,” 

http://www.nleomf.org/facts/officer-fatalities-data/causes.html (last accessed Oct. 27, 2018). 

200 While these data are reflecting averages and trends over the past several administrations, if 2016 numbers are 

included, the average of 62 fatalities does not change. See Ingraham, “Police are safer under Obama than they have 

been in decades,” supra note 198. 

0

10

20

30

40

50

60

70

80

2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

Firearms‐Related Fatalities
 Introduction, Data, and Major Theoretical Perspectives 39 

Chart 5: Police Fatalities 1980 to 2015 

Source: Officer Down Memorial Page,201 chart created by USCCR staff 

According to FBI statistics, assaults on police officers are also down (see Chart 6). In 1988, there 

were 15.9 assaults for every 100 officers.202 In 2000, they dropped to 12.7 assaults, in 2004 they 

decreased again to 11.3 per 100, and in the most recent data collected by the FBI (2014) they 

dropped to their lowest of 9.0 per every 100 officers.203 This trend is significant because it suggests 

that physical attacks on officers are also decreasing; therefore, an officer’s use of excessive force 

should also be experiencing the same trend. 

 

201 Officer Down Memorial Page, Inc., supra note 190. 

202 Ingraham, “Police are safer under Obama than they have been in decades,” supra note 198. 

203 Ibid. 

0

20

40

60

80

100

120

Police Fatalities

1981‐89 1989‐93 1993‐2001 2001‐08 2008‐15
40 Police Use of Force 

Chart 6: Assaults Against Law Enforcement 

Source: FBI, Law Enforcement Officers Killed and Assaulted,

204 chart created by USCCR staff

Furthermore, one study found an association between police using excessive force in the aftermath 

of officers being killed in the line of duty. Following a study of the New York Police Department, 

Joscha Legewie, Assistant Professor at Yale, found that force incidents seem to increase after an 

officer is fatally shot. 205 Further, Legewie found that this correlation may have a racial component, 

with use of excessive force more likely to increase if the officer is killed by a black individual, 

compared to a white or Latino individual.206 He found that police officers increased their use of 

force against African Americans after two officers were fatally shot by black suspects; however, 

their behavior did not change after three other officers were killed in two separate incidents by a 

Latino and White suspect. Legewie concluded that “racial bias in policing and discrimination more 

broadly is not static but fluctuates, partly driven by significant events that provoke intergroup 

conflict and foreground racial stereotypes.”207 

Legewie argues that discriminatory behavior may not arise from a single instance, but rather is the 

result of many interactions or even hearing about negative interactions from others.208 For instance, 

“officers who have hostile interactions with local youth (or hear about hostile interactions that 

other officers have had) may respond more forcefully in their next interaction even if the 

 

204 FBI: Uniform Crime Reporting, “Law Enforcement Officers Killed and Assaulted (LEOKA),” 

https://ucr.fbi.gov/leoka (last accessed Oct. 27, 2018). 

205 Joscha Legewie, “Racial Profiling and Use of Force in Police Stops: How Local Events Trigger Periods of 

Increased Discrimination,” American Journal of Sociology, vol. 122 (2016), http://jlegewie.com/files/Legewie2016-Racial-Profiling-and-Use-of-Force-in-Police-Stops.pdf. 

206 Ibid. at 381. 

207 Ibid. at 380. 

208 Ibid. 

0

2

4

6

8

10

12

14

16

18

1988 2000 2008 2016

Assaults against Police

Assaults per 100
 Introduction, Data, and Major Theoretical Perspectives 41 

interaction is with a different individual or group of individuals.”209 Thus, Legewie suggests that 

we may be able to understand police use of excessive force and issues such as racial profiling if 

we examine the events, social environment, and context in which they occur. These events, in 

tandem, may foster more racial biases than a single action when it takes place. Lastly, examining 

these possible causal relationships that may explain disproportionate use of excessive force may 

foster better understanding of how racial bias operates in these situations. This suggests that 

“frequent exposure to certain events such as crimes that involve black suspects might not only 

trigger temporary periods of discrimination but also permanently raise the use of police force 

against minorities or other discriminatory acts.”210 

Systemic Perspectives 

In contrast to the argument that disparities in rates of police use of force follow from data-driven 

policing, is the view that high rates of police-involved killings of people of color stem from explicit 

and implicit systemic bias against marginalized communities. Scholars have examined multiple 

issues surrounding the use of force debate, such as the disparate targeting of people of color by 

law enforcement, police stop-and-arrest decisions, and the link between implicit bias and an 

officer’s decision to shoot a suspect of color whom the officer perceives as “dangerous.”211 Though 

advocates disagree on the causes of this disproportionate impact, a prevalent theme in this body of 

literature is that the criminal justice system disproportionately impacts communities of color.

Communities of color

In a recent survey consisting of 802 African American adults, researchers found that 50 percent of 

all black Americans (57 percent of black men and 44 percent of black women) said they have 

personally experienced racial discrimination when interacting with the police.212 Further, 61 

percent responded that police officers are more likely to use unnecessary force against an AfricanAmerican person, compared to 26 percent who answered that police were just as likely to use 

unnecessary force against a white person.213 These perceptions of discrimination and unfair 

 

209 Ibid. at 410. 

210 Ibid. at 411. 

211 We Charge Genocide, The Counter-CAPS Report: The Community Engagement Arm of the Police State, 2015, 

http://wechargegenocide.org/wp-content/uploads/2015/10/CAPSreport-final.pdf; Goff et al., The Science of Justice: 

Race, Arrests, and Police Use of Force, supra note 12; Mike King, “Disruption is Not Permitted: The Policing and 

Social Control of Occupy Oakland,” Critical Criminology, vol. 21 (2013); New York Civil Liberties Union, Stopand-Frisk” Briefing Report, 2011, https://www.nyclu.org/sites/default/files/publications/NYCLU_2011_Stop-andFrisk_Report.pdf. 

212 NPR, Robert Wood Johnson Foundation, Harvard T.H. Chan School of Public Health, Discrimination in 

America: Experiences and Views of African Americans, 2017, 

https://www.npr.org/assets/img/2017/10/23/discriminationpoll-african-americans.pdf (survey of 802 AfricanAmerican U.S. adults conducted January 26-April 9, 2017; +/- 4.1 percentage points margin of error for the full 

African American sample). 

213 Ibid. 
42 Police Use of Force 

treatment by law enforcement have consequences for them personally, and on society as whole, 

since the survey also showed that 31 percent of the respondents said that they avoided calling the 

police due to fear of discrimination.214 

Discrimination and prejudice (perceived or actual) are two concepts that erode trust and confidence 

in the police. When surveyed, residents in low-income, high-crime areas often believe that police 

are biased against them. The Urban Institute found that over half of these 1,212 respondents, who 

were disproportionately black, agreed or strongly agreed that police officers were biased or 

behaved in a biased manner and believed that “police officers will treat you differently because of 

your race/ethnicity.”215 In contrast, a 2016 Pew Research poll found that roughly three-quarters of 

white respondents stated that “police in their communities do an excellent or good job in using the 

appropriate force on suspects,” and 75 percent believe that law enforcement treat all ethnicities 

equally.216 The same poll showed that about a third of black respondents stated that police did an 

excellent or good job in using the appropriate amount of force on a suspect, treating people of 

color equally, and holding officers accountable when misconduct occurs (see Chart 7 below).217

Chart 7: Public Perceptions of Law Enforcement 

Source: Pew Research Center 

 

214 Ibid. 

215 The sample included 3,750 households, with a total of 1,278 adults who completed the survey. Of those 

surveyed, 66.3 percent identified as black, 11.9 percent identified as white, and 10.6 percent identified as Latinx or 

Hispanic. See La Vigne et al., How Do People in High-Crime, Low-Income Communities View the Police?, supra

note 8, at 9, http://www.urban.org/sites/default/files/publication/88476/how_do_people_in_highcrime_view_the_police.pdf. 

216 Rich Morin and Renee Stepler, The Racial Confidence Gap in Police Performance, Pew Research Center, 2016, 

at 5, http://assets.pewresearch.org/wp-content/uploads/sites/3/2016/09/ST_2016.09.29_Police-Final.pdf. 

217 Ibid. 
 Introduction, Data, and Major Theoretical Perspectives 43 

Montague Simmons, from the Organization for Black Struggle, testified at the Commission’s 

briefing that many communities of color feel like they are heavily surveilled, devalued, and under 

attack by law enforcement: 

Countless boys and girls grew up . . . feeling like prey because the police in our city 

stalked those . . . who looked like us for pleasure and for profit, but there was 

actually no remedy for us specifically to be sought under our democracy. I 

remember in my own younger days when the harassment seemed like it was daily. 

Just walking home from school or from the bowling alley, it could result in some 

form of intimidation, humiliation, or harassment. For us this was a rite of passage 

that our brothers, mothers, fathers, cousins, and uncles did their best to prepare us 

for.218

Simmons further cites structural features (e.g., militarization, marketization) of the criminal justice 

system that leads to the use of law enforcement most heavily falling upon people of color, 

protestors, and other marginalized groups.219 At the Commission’s briefing, Ezekiel Edwards with 

the ACLU added that there is a sense of disparate treatment by law enforcement that leads to 

widespread distrust of the police.220 Edwards stated that this mistrust can reduce public safety and 

community members may be less likely to cooperate with police to address serious crimes or reach 

out to police for protection or assistance.221

Existing research supports the perception that people of color, specifically black and Latino people, 

are more likely to be stopped and searched (in both traffic and street stops) than their white 

counterparts.222 According to FBI reports, in Dearborn, Michigan more than half of the people 

arrested in 2011 and 2012 were black, despite representing only about 4 percent of the city’s 

residents.223 Over those two years, the police department reported arresting 4,500 black people, 

 

218 Briefing Transcript at 28. 

219 Ibid. at 29. 

220 Ibid. at 185. 

221 Ezekiel Edwards, American Civil Liberties Union, written statement for the “Police Use of Force: An 

Examination of Modern Policing Practices” Briefing before the U.S. Commission on Civil Rights, April 20, 2015, at 

4 [hereinafter Edwards Statement]. 

222 See Lynn Langton and Matthew Durose, Police Behavior during Traffic and Street Stops, 2011, U.S. Dep’t of 

Justice, 2013, at 1, https://www.bjs.gov/content/pub/pdf/pbtss11.pdf; Jamal Hagler, 8 Facts You Should Know About 

the Criminal Justice System and People of Color, Center for American Progress, 2015, 

https://www.americanprogress.org/issues/race/news/2015/05/28/113436/8-facts-you-should-know-about-thecriminal-justice-system-and-people-of-color/; The Sentencing Project, Black Lives Matter: Eliminating Racial 

Inequity in the Criminal Justice System, 2015, at 8, 

http://sentencingproject.org/doc/publications/rd_Black_Lives_Matter.pdf; New York Civil Liberties Union, Stopand-Frisk Briefing Report, 2011, at 2, https://www.nyclu.org/sites/default/files/publications/NYCLU_2011_Stopand-Frisk_Report.pdf. 

223 Brad Heath, “Racial gap in U.S. arrest rates: ‘Staggering disparity,’” USA Today, Nov. 19, 2014, 

https://www.usatoday.com/story/news/nation/2014/11/18/ferguson-black-arrest-rates/19043207/ (citing FBI 

reports). 
44 Police Use of Force 

500 more than lived in the city itself, resulting in an arrest rate of black civilians that was 26 times 

higher than that of other races.224 A USA Today analysis of over 3,500 police departments across 

the country found that 95 percent arrested black people at a higher rate than other racial groups,225

and often for non-violent offenses (e.g., nearly one in three people arrested for drug law violations 

were black) which contribute to disproportionate incarceration rates of African Americans.226 

Phillip Atiba Goff with the Center for Policing Equity argues that these statistics need to be 

evaluated with caution, because they speak more about how racial inequities play out rather than 

what causes them. Goff asserts that: 

There is no doubt a significant degree of law enforcement bias that is the engine for 

this. But there’s also no controversy that educational quality and employment 

discrimination lead to this. It’s not an indicator of how big a problem there is with 

a police department. It’s an aggregator of what’s going on in the community.227

Lance Hannon, professor of sociology and criminology at Villanova University, found racial bias 

in police interactions with civilians when analyzing the Philadelphia Police Department’s 2014-

15 stop-and-frisk data.228 Hannon found that the issue was much broader than expected, where 

bias affected not only black people, but entire, predominantly black neighborhoods were 

disproportionately impacted.229 Hannon’s research showed that mostly black neighborhoods had 

70 percent more frisks than nonblack areas, despite the fact that less contraband was discovered. 

 

224 Ibid. 

225 Ibid. 

226 Human Rights Watch, Decades of Disparity: Drug Arrests and Race in the United States, 2009) (citing FBI UCR 

data), at 4, https://www.hrw.org/sites/default/files/reports/us0309web_1.pdf. See also Katherine Beckett, Kris 

Nyrop, Lori Pfingst, “Race, Drugs, and Policing: Understanding Disparities in Drug Delivery Arrests,” Criminology, 

vo. 44 (2016), at 129-130, https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1745-9125.2006.00044.x; K. Jack 

Riley, Crack, Powder Cocaine, and Heroin: Drug Purchase and Use Patterns in Six Major U.S. Cities, U.S. Dep’t 

of Justice, National Institute of Justice, Office of National Drug Control Policy, 1997, 

https://www.ncjrs.gov/pdffiles/167265.pdf (concluding that Black people are far more likely to be arrested on drug 

charges than white people, despite that whites use drugs at the same rate. Studies have actually shown that whites 

are more likely to sell drugs, but black people are still more likely to be arrested for them. Thus, making it appear

that black people have higher rates of drug possession). See U.S. Dep’t of Health and Human Services, Results from 

the 2013 National Survey on Drug Use and Health: Summary of National Findings, Substance Abuse and Mental 

Health Services Administration Center for Behavioral Health Statistics and Quality, 2014, 

https://www.samhsa.gov/data/sites/default/files/NSDUHresultsPDFWHTML2013/Web/NSDUHresults2013.pdf; 

Jonathan Rothwell, How the War on Drugs Damages Black Social Mobility, Brookings Institute, 2014, 

https://www.brookings.edu/blog/social-mobility-memos/2014/09/30/how-the-war-on-drugs-damages-black-socialmobility/; David Kocieniewski and Robert Hanley, “An Inside Story of Racial Bias and Denial; New Jersey Files 

Reveal Drama Behind Profiling,” New York Times, Dec. 3, 2000, 

https://www.nytimes.com/2000/12/03/nyregion/inside-story-racial-bias-denial-new-jersey-files-reveal-dramabehind-profiling.html. 

227 Heath, “Racial Gap in U.S. Arrest Rates: ‘Staggering Disparity,’” supra note 223. 

228 Lance Hannon, “An Exploratory Multilevel Analysis of Pedestrian Frisks in Philadelphia,” Race and Justice, 

2017. 

229 Ibid. 
 Introduction, Data, and Major Theoretical Perspectives 45 

Further, these elevated rates of frisking remained constant in both high-crime areas and low-crime 

areas.230 Hannon concluded that these disproportionate rates are due to African Americans being 

held to a 

lower level of reasonable suspicion—so people who should not be perceived as 

dangerous or objectively not dangerous are more likely to get swept up in a stopand-frisk initiative and be unproductively frisked due to implicit racial bias.231 

Fear of police among the Latino community is a significant issue as well. The W.K. Kellogg 

Foundation reported in November 2014 that 68 percent of Latinos worry that law enforcement will 

use excessive force against them.232 Twenty six percent believe that officers will treat them fairly 

most of the time, 18 percent have friends or family members who were victims of police brutality, 

and 59 percent said there are things they would change about their local police.233 Moreover, 

LatinoJustice found that in 2018, more than 50 percent of Latinxs234 believe the police use 

excessive force—specifically deadly force—against community members.235 Juan Cartagena, 

President and General Counsel of LatinoJustice PRLDEF, stated that: 

Latinos in America are significantly concerned about their public safety both at the 

hands of police and by their neighbors. They are convinced that they will be more 

subject to unlawful deadly force by police compared to whites, they believe local 

police treat them in ways similar to how African-Americans are treated, and they 

disavow the use of racial profiling by law enforcement.236

 

230 Ibid. 

231 Samantha Melamed, “Study: High rates of stop-and-frisk even in Philly’s lowest-crime black areas,” Philly.com, 

Oct. 2, 2017, http://www.philly.com/philly/news/crime/stop-frisk-policing-philadelphia-racial-bias-lance-hannonvillanova-20171002.html. See also Gloria Porter, University of St. Thomas, Minnesota Hearing Transcript at 347-

49. Despite working closely with the Minneapolis police for her job as a recruiter for a Master’s program in public 

safety and police leadership, Gloria Porter testified she has been pulled over multiple times in her neighborhood for 

trivial reasons. Notwithstanding her friendly relationships with police officers, she recounted being cited for 

changing lanes to avoid a car driving in the wrong lane, harassed for having snow on her windshield, or stopped for 

having an air freshener hanging off her rear-view mirror. 

232 Press Release: W.K. Kellogg Foundation, “Poll of Latino families finds optimism despite many obstacles,” Nov. 

12, 2014, https://www.wkkf.org/news-and-media/article/2014/11/poll-of-latino-families-finds-optimism-despitemany-obstacles. 

233 Ibid.

234 Latinx is a gender-neutral or non-gender binary term of a person of Latin American descent. The term is often 

used as an alternative to Latino or Latina. 

235 Press Release: LatinoJustice, “National Poll Shows Latinos Are Concerned about Police Violence, Feel Less Safe 

Under Trump But Insist on Increased Spending on Rehabilitation Instead of More Funding for Prisons or Police,” 

Jan. 10, 2018, 

http://latinojustice.org/briefing_room/press_releases/national_poll_shows_latinos_are_concerned_about_police_viol

ence_feel_less_safe_under_trump_but_insist_on_increased_spending_on_rehabilitation_instead_of_more_funding_

for_prisons_or_police/. 

236 Ibid. 
46 Police Use of Force 

Further, these feelings are supported by patterns of racial profiling. For instance, after a three-year 

investigation of the Maricopa County police department, the Justice Department found that the 

department had repeatedly violated Latino residents’ civil rights.237 In a letter to county officials, 

Assistant Attorney General Thomas Pérez stated that: 

deputies, supervisory staff, and command staff, engages in racial profiling of 

Latinos; unlawfully stops, detains, and arrests Latinos; and unlawfully retaliates 

against individuals who complain about or criticize the [Maricopa County Sheriff’s 

Office.238 

According to the civil rights lawsuit filed by the Justice Department, Maricopa County officers 

stopped Latino drivers four to nine times more often than non-Latino drivers among other 

violations.239 

Moreover, data from the Center on Juvenile and Criminal Justice and Guardian reporters further 

confirm this heightened level of fear among Latinos. In 2014, the Center on Juvenile and Criminal 

Justice noted that the number of Latino victims of police killings is 30 percent above average and 

1.9 times the rate for white people.240 Further, Guardian reporters found in 2016, 15.3 percent of 

Latinos whom police killed in gun-involved homicides were unarmed.241 A 2015 CNN report 

noted similar police-involved killings of Latinos occurring in cities across the country.242 For 

instance, Rubén García Villalpando was unarmed when a Texas police officer shot him twice in 

the chest on February 20, 2015.243 Two police officers reportedly killed 17-year-old Jessica 

Hernández, who was unarmed, in Denver on January 26, 2015.244

 

237 Press release: U.S. Dep’t of Justice, “Dep’t of Justice Files Lawsuit in Arizona Against Maricopa County, 

Maricopa County Sheriff’s Office, and Sheriff Joseph Arpaio,” May 10, 2012, 

https://www.justice.gov/opa/pr/department-justice-files-lawsuit-arizona-against-maricopa-county-maricopa-countysheriff-s. 

238 U.S. Dep’t of Justice, Civil Rights Division, Findings Letter, “United States’ Investigation of the Maricopa 

County Sheriff’s Office,” Dec. 15, 2011, at 2, 

https://www.justice.gov/sites/default/files/crt/legacy/2011/12/15/mcso_findletter_12-15-11.pdf. 

239 Press release: U.S. Dep’t of Justice, “Dep’t of Justice Files Lawsuit in Arizona Against Maricopa County, 

Maricopa County Sheriff’s Office, and Sheriff Joseph Arpaio,” May 10, 2012, 

https://www.justice.gov/opa/pr/department-justice-files-lawsuit-arizona-against-maricopa-county-maricopa-countysheriff-s; See Melendres v. Arpaio, 695 F.3d 990, 994-95 (9th Cir. 2012). 

240 Mike Males, “Who Are Police Killing?,” Center on Juvenile and Criminal Justice, 2014, 

http://www.cjcj.org/news/8113 (last accessed Oct. 27, 2018). 

241 Guardian, “The Counted,” supra note 87. 

242 Raul Reyes, “Police brutality toward Latinos is unacceptable,” CNN, June 19, 2015,

http://www.cnn.com/2015/06/09/opinions/reyes-police-brutality-latinos/. 

243 Catherine Shoichet, “Grand jury: No charges for Texas officer who shot Mexican immigrant,” CNN, May 19, 2015, 

https://www.cnn.com/2015/05/18/us/texas-police-shooting-immigrant-killed/index.html. 244 Reyes, “Police brutality towards Latinos is unacceptable,” supra 242. 
 Introduction, Data, and Major Theoretical Perspectives 47 

Moreover, according to a national survey by LatinoJustice, researchers found that respondents 

believe there is a significant “data-gap problem.”245 Respondents stated that too often discussions 

of law enforcement and criminal justice reform primarily focus on the disparate rates between 

black and white people.246 Therefore, data on Latino communities is often lacking and 

insufficient.247 

According to research gathered by Guardian reporters, in 2015, thirteen Native Americans and 

Alaska Natives were killed by or died in the custody of police throughout the country, and this 

number of fatalities rose to 24 in 2016.248 Research by the Lakota People’s Project demonstrated 

that Native Americans “suffer the most adverse effects of a criminal justice system which 

consistently reifies itself as structurally unjust.”249 Native American and Alaska Native 

communities represent less than 1 percent of the U.S. population, yet between 2001 and 2016 they 

were killed by police at nearly the same rate as black people, who make up approximately 13.3 

percent of the overall population250 (0.23 per 100,000 versus 0.28 per 100,000).251 Comparative to 

the percentage of the U.S. population, this makes them the racial group most likely to be killed by 

law enforcement.252 

Simon Moya-Smith, an Oglala Lakota journalist and activist, states that the media rarely covers 

the number of police-involved killings that occur on tribal lands, and that these incidents are treated 

 

245 LatinoJustice, supra note 235. 

246 Ibid.; LatinoJustice, “Justice Reform Collaborative,” http://preview.latinojustice.org/civil_rights/JRC/ (last 

accessed Oct. 27, 2018); Juleyka Lantigua-Williams, “Criminal Justice is Becoming a ‘Latino Issue,’” The Atlantic, 

Sept. 20, 2016, https://www.theatlantic.com/politics/archive/2016/09/why-criminal-justice-is-becoming-a-latinoissue/500864/. 

247 LatinoJustice, supra note 235. 

248 Based on data collected by Guardian, “The Counted,” supra note 87. 

249 Lakota People’s Law Project, Native Lives Matter Report, 2015, at 1, https://s3-us-west1.amazonaws.com/lakota-peoples-law/uploads/Native-Lives-Matter-PDF.pdf. 

250 United States Census Bureau, Race, Combinations of Two Races, and Not Hispanic or Latino: 2010, 2010 

Census Summary File 1, 2010. (U.S. Census Data as of July 2016). 

251 Centers for Disease Control and Prevention, “Fatal Injury Data,” https://www.cdc.gov/injury/wisqars/fatal.html 

(last accessed Oct. 27, 2018). 

252 Mike Males, “Who Are Police Killing?,” supra note 240 (citing CDC data). Federal standards on racial and 

ethnic data require a minimum of five racial categories including, American Indian or Alaska Native, Asian, Black 

or African American, Native Hawaiian or Other Pacific Islander, and White. See OMB, Revisions to the Standards 

for the Classification of Federal Data on Race and Ethnicity, 62 FED. REG. 58,582 (Oct. 30, 1997). These standards 

“were developed in cooperation with Federal agencies to provide consistent data on race and ethnicity throughout 

the Federal Government. Development of the data standards stemmed in large measure from new responsibilities to 

enforce civil rights laws.” Id. The Commission notes that Native Americans and Indian tribes also have a special 

government-to-government relationship with the federal government and that the Supreme Court has repeatedly held 

that “classifications expressly singling out Indian tribes as subjects of legislation are expressly provided for in the 

Constitution and supported by the ensuing history of the Federal Government’s relations with Indians.” U.S. v. 

Antelope, 430 U.S. 641, 645 (1977). 
48 Police Use of Force 

as isolated occurrences and largely ignored by the national media.253 Therefore, it is likely that 

there is less public awareness about police use of force in these communities, and in turn, 

considerably less public attention or outcry for reform.254 Moya-Smith states: “There are no white 

or black faces rallying around us, marching with us, protesting with us over this injustice. Why? 

Because we are a forgotten people.”255 Millet argues that of all police-involved killings of 

individuals from Native American and Alaskan Native communities over five years, only two have 

received significant media coverage outside of the local community.256

Actual or perceived discrimination and racial bias by police officers against communities of color 

can be related to these communities’ actual or perceived political marginalization. The negative 

consequences of the political disempowerment suffered by communities of color have been 

repeatedly noted by this Commission.257 Because “communities of color . . . often lack the political 

power and financial means”258 to influence elected government officials and hold them 

accountable, some perceive legitimate concerns these communities may have about police actions 

not given the same consideration as those voiced by their more politically powerful neighbors.259

Lack of political clout may render communities vulnerable to policing tactics that would not be 

“politically acceptable in [other] communities.”260 

 

253 Simon Moya-Smith, “Who’s most likely to be killed by police?,” CNN, Dec. 24, 2014, 

http://www.cnn.com/2014/12/24/opinion/moya-smith-native-americans. 

254 Ibid. 

255 Ibid. 

256 Lydia Millet, “Native Lives Matter, Too,” New York Times, Oct. 13, 2015, 

https://www.nytimes.com/2015/10/13/opinion/native-lives-matter-too.html?mcubz=0. 

257 U.S. Commission on Civil Rights, Public Education Funding Inequity in an Era of Increasing Concentration of 

Poverty and Resegregation, 2018, at 33 [hereinafter Public Education Funding Inequity]; U.S. Commission on Civil 

Rights, Environmental Justice: Examining the Environmental Protection Agency’s Compliance and Enforcement of 

Title VI and Executive Order 12,89, 2016, at 4 [hereinafter Environmental Justice] (“Racial minorities and low 

income communities are disproportionately affected by the siting of waste disposal facilities and often lack political 

and financial clout” to fight negative decisions or to seek redress). See also Environmental Justice, at 6. (Industrial 

waste sites “that can negatively impact human health” are often situated in minority communities precisely “because 

they lack the political clout and resources” to fight back). 

258 Public Education Funding Inequity, at 33. 

259 Matthew Fogg, former Chief Deputy U.S. Marshal, written statement for the “Police Use of Force: An 

Examination of Modern Policing Practices” Briefing before the U.S. Commission on Civil Rights, April 20, 2015, at 

5 [hereinafter Fogg Statement]. In his statements to the Commission at the briefing, Fogg alleged that police officers 

are reluctant to aggressively police white, politically empowered communities because they “knew legislators, 

judges and government officials,” and could “shut down” operations that risked officers losing “pay benefits such as 

overtime and asset seizures.” 

260 NY State Advisory Committee to U.S. Commission on Civil Rights, The Civil Rights Implications of “Broken 

Window” Policing in NYC and General NYPD Accountability to the Public, at 10 (2018), 

http://www.usccr.gov/pubs/2018/03-22-NYSAC.pdf. 
 Introduction, Data, and Major Theoretical Perspectives 49 

Disability communities 

Talila Lewis, co-founder of Helping Educate to Advance the Rights of the Deaf (HEARD) points 

out that a considerable number of police-involved killings also involve individuals with 

psychological, emotional, or physical disabilities.261 In several cases, excessive force was used 

when the individual was armed with some sort of implement (e.g., knife, screwdriver, rock).262

More importantly, in many of these cases, police were not responding to reports of a crime being 

committed. Police officers were often called because relatives, neighbors, or other bystanders were 

worried that a mentally fragile person was behaving erratically.263 On average, “police shot and 

killed someone who was in mental crisis every 36 hours in the first six months of [2015]. On April 

25, [2015] three mentally ill men were gunned down within 10 hours.”264 In 2016, 242 people with 

known mental illnesses were fatally shot by police; that number decreased to 236 in 2017.265

Many police departments do not have policies in place to prepare officers in how to safely interact 

and resolve encounters with people with disabilities. For instance, the Chicago Police 

Accountability Task Force report266 and the 2017 DOJ investigation267 report found that the 

Chicago Police Department did not have effective training policies in place to protect this 

community. The absence of such policies raises concerns for several reasons. First, without 

policies in place to direct officers in how to safely interact with the disability community, some 

officers may react with unnecessary or excessive force since they do not have specific protocol to 

follow. Further, if an incident were to occur, without policies in place, supervisors would not be 

able to hold officers accountable for their actions, if indeed they did use excessive force. Moreover, 

without policies in place that promote training, ensure safety, and focus on de-escalation tactics 

the high rates of people with disabilities being fatally shot by officers will continue. Talila Lewis 

asserts that: 

 

261 Talila Lewis, co-founder of Helping Educate to Advance the Rights of the Deaf (HEARD), Briefing Transcript at 

15-16. 

262 Ibid.; Peter Holley and Wesley Lowery, “The Chicago shootings and why so many police calls involving the 

mentally ill end in death,” Washington Post, Dec. 2015, https://www.washingtonpost.com/news/postnation/wp/2015/12/29/why-police-calls-involving-the-mentally-ill-often-end-in-tragedy/?utm_term=.85e3da9c866b. 

263 Wesley Lowery, Kimberly Kindy, Keith Alexander, Julie Tate, Jennifer Jenkins, and Steven Rich, “Distraught 

People, Deadly Results,” Washington Post, June 30, 2015, 

http://www.washingtonpost.com/sf/investigative/2015/06/30/distraught-people-deadlyresults/?utm_term=.609046208b59. 

264 Ibid. 

265 Julie Tate, Jennifer Jenkins, Steven Rich, John Muyskens, Kennedy Elliott, Ted Mellnik, and Aaron Williams, 

“Fatal Force,” Washington Post, https://www.washingtonpost.com/graphics/national/police-shootings-2017/. 

266 U.S. Dep’t of Justice, Recommendations for Reform: Restoring Trust between the Chicago Police and the 

Communities they Serve, 2016, https://chicagopatf.org/wp-content/uploads/2016/04/PATF_Final_Report_4_13_16-

1.pdf. 

267 U.S. Dep’t of Justice, Civil Rights Division, and US Attorney’s Office Northern District of Illinois, Investigation 

of the Chicago Police Department, 2017, https://www.justice.gov/opa/file/925846/download. 
50 Police Use of Force 

It is critical to the lives of persons with many types of disabilities that the 

Department of Justice create national standards and police departments adopt and 

implement policies and practices that comply with the ADA [Americans with 

Disabilities Act].268 

Another significant issue is a lack of community health support in many cities and states 

throughout the U.S.269 Therefore, if a mental health crisis arises, police are likely to become the 

first people on the scene, which can have fatal consequences for citizens who have disabilities due 

to issues such as lack of training, ineffective or nonexistent polices, and potentially bias. Due to 

the decreased funding and deinstitutionalization of mental health services, police work has become 

increasingly difficult in many ways. Law enforcement officers who are engaged in community 

policing270 efforts provide citizens with services that go beyond maintaining public safety and 

enforcing laws.271 Moreover: 

Law enforcement officers are first-line, around-the-clock, emergency responders, 

mediators, referral agents, counselors, youth mentors . . . [and] [a]mong their 

growing list of responsibilities is the need to effectively respond to people with 

mental illnesses.272 

According to data collected by the Washington Post, 25 percent of police-involved killings in 2015 

involved individuals with mental health needs.273 A large portion (45 percent) of police-involved 

 

268 Talila Lewis, written statement for the “Police Use of Force: An Examination of Modern Policing Practices” 

Briefing before the U.S. Commission on Civil Rights, April 20, 2015, at 7 [hereinafter Lewis Statement]. 

269 See generally, National Alliance on Mental Illness, State Mental Health Cuts: A National Crisis, 2011, at 2, 

https://www.nami.org/getattachment/About-NAMI/Publications/Reports/NAMIStateBudgetCrisis2011.pdf; Norm 

Ornstein, “How to Fix a Broken Mental-Health System,” The Atlantic, June 8, 2016, 

https://www.theatlantic.com/politics/archive/2016/06/getting-mental-health-on-the-docket/485996/; Anisha Lewis, 

“Incarceration and Mental Health,” The Center for Prisoner Health and Human Rights, 

http://www.prisonerhealth.org/educational-resources/factsheets-2/incarceration-and-mental-health/ (last accessed 

Oct. 28, 2018); Alex Vitale and Owen West, “Police not adequately trained on mental health,” USA Today, Nov. 18, 

2016, https://www.usatoday.com/story/opinion/policing/2016/11/17/policing-the-usa-mental-health-illness-brutalityforce/93823126/. 

270 Community Oriented Policy Services (COPS) defines community policing as an organizational strategy that 

supports the systematic use of partnerships and problem-solving techniques to address public safety issues such as 

crime, social disorder, and fear of crime. See U.S. Dep’t of Justice, Community Policing Defined, 2014, 

https://cops.usdoj.gov/pdf/vets-to-cops/e030917193-CP-Defined.pdf. 

271 Jilian Mincer and Eric Johnson, “U.S. Police get little training to handle crises with mentally ill,” Reuters, Dec. 

29, 2015, http://www.reuters.com/article/us-usa-police-mentalhealth-idUSKBN0UD04K20151230. 

272 Mellissa Reuland, Matthew Schwarzfeld, and Laura Draper, Law Enforcement Responses to People with Mental 

Illness: A Guide to Research-Informed Policy and Practice, Council of State Governments Justice Center, 2009, at 

3, https://csgjusticecenter.org/wp-content/uploads/2012/12/le-research.pdf 

273 Julie Tate, et al., supra note 265. The data shown include information on race of the deceased, circumstances of 

the shooting, and whether the person was armed. Washington Post researchers compiled these data by culling local 

news reports and monitoring independent databases such as “Killed by Police” and “Fatal Encounters.” In some cases, 

the Post conducted additional reporting. The Post documented only shootings in which a police officer, while on duty, 

shot and killed a civilian—circumstances that most closely parallel the 2014 killing of Michael Brown in Ferguson, 
 Introduction, Data, and Major Theoretical Perspectives 51 

killings of individuals with mental health challenges occurred in cities located in six states: 

California (43), Texas (20), Florida (10), Washington (9), and Alabama and Arizona (8 each). In 

her written testimony to the Commission, Talila Lewis, noted that law enforcement personnel often 

mistake behaviors associated with disability as “threatening” or “noncompliant.”274 She reported 

that officers often feel underprepared or unprepared to safely interact with people with 

disabilities.275 At a 2017 briefing of the Maine State Advisory Committee to the U.S. Commission 

on Civil Rights, Maine State Police Sergeant Stevenson stated that before implementing targeted 

officer training, it used to be common practice in his department to respond to someone in mental 

health distress (e.g., threatening suicide) with a dangerous weapon, even if they did not pose a 

danger to anyone except themselves.276 Some police departments (e.g., Houston, Milwaukee) have 

begun to recognize the need for their officers to have increased training for mental illnesses, and 

have increased the number of training hours for officers.277 

Talila Lewis’ and Richard Davis’ testimony to the Commission demonstrate mounting public 

concern over rising numbers of fatal interactions involving police and people with disabilities. 

Davis, who represents The Arc’s National Center on Criminal Justice and Disability, recounted 

the story of Ethan Saylor, a young man with Down syndrome whose first interaction with the 

criminal justice system ultimately led to his death.278 In 2018, the state of Maryland settled with 

the Saylor family for $1.9 million.279 As a component of the settlement, the police deputies, the 

state, and Hill Management Services (the company that owns the theater where the incident 

happened)—“den[ied] liability of any sort.”280 The attorney for the Saylor family, Joseph B. Espo 

 

MO. The Post did not track deaths of people in custody, fatal shootings by off-duty officers, or deaths in which police 

gunfire did not kill the individual. 

274 Lewis Statement at 3. 

275 Id.; Briefing Transcript at 17. 

276 Sergeant Tyler Stevenson, Maine State Police, testimony before Maine Advisory Committee to the U.S. 

Commission on Civil Rights, briefing, Lewiston, ME, June 14, 2017, transcript at 90 [hereinafter Maine Hearing 

Transcript]. 

277 Meg Kissinger, “Milwaukee to require mental health training for all officers,” Journal Sentinel, 2014, 

http://archive.jsonline.com/watchdog/watchdogreports/milwaukee-to-require-mental-health-training-for-all-officersb99411610z1-286290151.html/; Steven Ross Johnson, “Houston Police Department Arms Its Officers with Training 

on Handling Mental Health Encounters,” Justice Center, The Council of State Governments, May 27, 2017,

https://csgjusticecenter.org/law-enforcement/media-clips/houston-police-department-arms-its-officers-with-trainingon-handling-mental-health-encounters/. 

278 Richard Davis, The Arc, Briefing Transcript at 23-24. Furthermore, this does not appear to be an isolated incident 

in Fredrick County, Maryland because law enforcement has been subject to other civil rights litigation. See Santos v. 

Frederick County Bd. of Com’rs, 725 F.3d 451, 465 (4th Cir. 2013) (finding Fourth Amendment violations in a case 

involving alleged racial profiling of a Latina immigrant), cert. denied, 134 S. Ct. 1541 (2014). 

279 Theresa Vargas, “Settlement reached in police-custody death of man with Down syndrome,” Washington Post, 

April 24, 2018, https://www.washingtonpost.com/local/settlement-reached-in-police-custody-death-of-man-withdown-syndrome/2018/04/24/7d53c0ca-47fe-11e8-827e-190efaf1f1ee_story.html?utm_term=.ef5fb23713aa. 

280 Ibid.; see also Heather Cobun, “State, deputies reach $1.9M settlement over death of disabled man,” The Daily 

Record, April 24, 2018, https://thedailyrecord.com/2018/04/24/ethan-saylor-death-settlement/; Settlement 

Agreement, Estate of Saylor v. Regal Cinemas, Inc., No. 1:13-CV-03089, slip op. (D. Md. filed Apr. 26, 2018). 
52 Police Use of Force 

stated that the settlement sends “the message that there are real consequences to failing to treat 

individuals with disabilities in the manner in which they are entitled.”281

Further, Lewis testified that few departments across the country actually provide adequate training 

to officers working with these populations, despite that Title II of the Americans with Disabilities 

Act requires law enforcement compliance with and implementation of specific training policies.282

For instance, Vaughn Bond, Police Chief of New Castle County, Delaware testified that his 

department has started to implement policies to better serve disability communities and those who 

suffer from mental health challenges: 

We have to partner up with organizations such as a NAMI, the National Alliance 

on Mental Illness, to make sure that we have the best practices so that our officers 

are able to interact during a crisis situation in a way that would not require us to use 

force . . . Recently, we just instituted our first Veterans Response Team training. 

And that is a training . . . where we have officers who were veterans of the military 

who received additional training to deal with individuals who are suffering—who 

were in the military and who may be coming back and dealing with the effects of 

being in war [and] this is a significant problem that doesn’t get a lot of coverage 

from the media.283

Lewis stated that mental health challenges have broad societal consequences which present many 

problems for law enforcement, thus it is crucial that police departments continue to devise methods 

to work safely with community members.284 

Lesbian, Gay, Bisexual, Transgender communities 

Police use of force against lesbian, gay, bisexual, and transgender (LGBT) communities is a 

pervasive yet under-addressed national issue.285 LGBT communities have a long-troubled history 

with law enforcement. Despite the recent gains in civil rights for these communities, disparate 

treatment of LGBT individuals in the criminal justice system is a persistent problem.286 

 

281 Ibid. 

282 Lewis, Briefing Transcript at 17-18. 

283 Vaughn Bond, Chief of New Castle County Police Department, testimony before the Delaware State Advisory 

Committee to the U.S. Commission on Civil Rights, hearing, Wilmington, DE, November 1, 2017, transcript at 260-

62 (hereinafter Delaware Hearing Transcript). 

284 Ibid. 

285 Christy Mallory, Amira Hasenbush, and Brad Sears, Discrimination and Harassment by Law Enforcement in the 

LGBT Community, The Williams Institute, 2015, at 6-11, http://williamsinstitute.law.ucla.edu/wpcontent/uploads/LGBT-Discrimination-and-Harassment-in-Law-Enforcement-March-2015.pdf. 

286 Ibid. 
 Introduction, Data, and Major Theoretical Perspectives 53 

The intersections of race, gender, and sexuality further expose even more unfair treatment at the 

hands of police.287 After numerous complaints about police misconduct against LGBTQ288 people 

in Queens, New York, the non-profit group, Make the Road New York, interviewed over 300 

residents, a majority of whom were people of color (82 percent of the non-LGBTQ respondents 

and 77 percent of the LGBTQ respondents) about their experiences with police in the Jackson 

Heights neighborhood. In 2011, officers in the local precinct conducted 10,795 stop-and-frisks, 

and black and Latino people made up 90 percent of these stops.289 In a 2012 report, Make the Road 

New York found that over half (54 percent) of all LGBT respondents had been stopped by police, 

compared to 28 percent of non-LGBT respondents.290 Members of the transgender community 

reported frequent harassment by law enforcement. The report found that 59 percent of transgender 

respondents reported being stopped by police and being “profiled as sex workers when they were 

conducting routine daily tasks in the neighborhood.”291 Of those individuals stopped, 51 percent 

of all LGBT respondents and 61 percent of transgender respondents reported that they had been 

physically or verbally harassed, and some also reported sexual abuse by police officers including 

being “forced to perform sexual acts under threat of arrest.”292

A 2013 research study by the National Coalition of Anti-Violence Programs found that 48 percent 

of LGBT hate crime survivors reported that they had experienced police misconduct.293 They 

found that transgender women were four times more likely to experience police violence compared 

to overall survivors. Transgender people overall were seven times more likely to experience 

physical violence when interacting with the police compared to cisgender294 survivors and victims. 

Further, 57 percent of LGBT survivors reported being unjustifiably arrested, 28 percent reported 

use of excessive force, approximately 12 percent reported physical violence, and approximately 3 

percent reported sexual violence.295

According to one study: 

 

287 The Commission recognizes and acknowledges that data on LGBT individuals and communities are sparse, thus 

in this report we must rely on reports of abuse. 

288 The acronym LGBTQ refers to individuals who identify as lesbian, gay, bisexual, transgender, or queer. While 

this report generally uses LGBT, in the discussion of studies that use LGBTQ, the Commission remains consistent 

and appropriate to the respondents’ identities reflected in the primary sources. 

289 Make the Road New York, Transgressive Policing: Police Abuse of LGBTQ Communities of Color in Jackson, 

Heights, 2012, at 15, 

http://www.maketheroad.org/pix_reports/MRNY_Transgressive_Policing_Full_Report_10.23.12B.pdf. 

290 Ibid. 

291 Ibid. at 4. 

292 Ibid. at 5. 

293 National Coalition of Anti-Violence Programs, Lesbian, Gay, Bisexual, Transgender, Queer and HIV-Affected 

Hate Violence in 2013, 2014, at 39, https://avp.org/wp-content/uploads/2017/04/2013_ncavp_hvreport_final.pdf. 

294 Cisgender is a term referring to individuals whose gender identity is congruent with the sex they were assigned at 

birth. 

295 National Coalition of Anti-Violence Programs, Lesbian, Gay, Bisexual, Transgender, Queer and HIV-Affected 

Hate Violence in 2013, supra note 293. 
54 Police Use of Force 

a quarter of LGBT people and people with HIV who reported in-person contact 

with law enforcement said they experienced one form of harassment or 

misconduct—including profiling, verbal or physical assault, sexual harassment, or 

assault and false arrest.296 

The 2015 survey by the National Center for Transgender Equality also found high rates of 

respondents alleging police harassment, abuse, or mistreatment, with nearly 86 percent reported 

being harassed, attacked, sexually assaulted, or mistreated by the police.297 Further, more than half 

of respondents stated they would not ask the police for help if they needed it, which also threatens 

all public safety.298 

Moreover, LGBT complaints about police misconduct often go unaddressed. A 2014 study by 

Lambda Legal found that, of the 2,376 LGBT respondents, 74 percent reported having face-toface contact with the police within the past five years.299 Of those, one-quarter of respondents 

reported at least one type of misconduct or harassment from law enforcement. One out of every 

five (21 percent) respondents reported that officers were hostile to them, 14 percent of respondents 

reported being verbally assaulted by police, 3 percent reported sexual harassment, and 2 percent 

reported physical assault.300 People of color, low-income people, and people living with HIV 

reported harassment and assault by police more frequently than survey respondents as a whole.301

Four percent of respondents of color reported being physically assaulted by police, 4 percent of 

transgender and gender non-confirming respondents reported physical assault, 5 percent of lowincome respondents, and 6 percent of HIV-positive respondents reported being physically 

assaulted by police in the past five years.302 

 

296 This study only utilized LGBT identity categories when inquiring on participants’ identity. To remain consistent 

to the source, staff restricted the language to only LGBT when discussing this study. Niaz Kasravi, Born Suspect: 

Stop-and-Frisk Abuses & the Continued Fight to End Racial Profiling in America, NAACP, 2014, at 16, 

http://action.naacp.org/page/-/Criminal%20Justice/Born_Suspect_Report_final_web.pdf (citing Lambda Legal, 

“Protected and Served? Survey of LGBT/HIV Contact with Police, Courts, Prisons, and Security,” 

https://www.lambdalegal.org/protected-and-served/summary (last accessed Oct. 28, 2018). 

297 Sandy E. James, Jody L. Herman, Susan Rankin, Mara Keisling, Lisa Mottet, and Ma’ayan Anafi, Executive 

Summary of the Report of the 2015 U.S. Transgender Survey, National Center for Transgender Equality, at 86, 2016, 

http://www.transequality.org/sites/default/files/docs/usts/Executive%20Summary%20-%20FINAL%201.6.17.pdf. 

298 Ibid. 

299 Lambda Legal, “Protected and Served? Survey of LGBT/HIV Contact with Police, Courts, Prisons, and Security,” 

at 6, https://www.lambdalegal.org/sites/default/files/publications/downloads/ps_executive-summary.pdf. 

300 Ibid. 

301 Ibid. at 7. 

302 Lambda Legal, “Protected and Served? Police,” http://www.lambdalegal.org/protected-and-served-police (last 

accessed Oct. 28, 2018). 
 Police Oversight and Accountability 55 

CHAPTER 2: POLICE OVERSIGHT AND ACCOUNTABILITY 

This Chapter examines the issue of police oversight and accountability. The first section discusses 

the need for, and some of the challenges faced by law enforcement agencies in, holding officers 

accountable. The next section examines data regarding body-worn cameras and the current debates 

about implementing these programs nationwide. Next, we outline several proposed strategies to 

increase external accountability and build community trust. The chapter concludes with a 

discussion of federal intervention strategies between the Department of Justice and local law 

enforcement through the use of consent decrees, which provide the added element of long-term 

federal oversight. 

Internal Accountability 

Internal accountability can come in two forms: officers reporting if they witness another officer 

using inappropriate or unlawful force against civilians, and supervisors enforcing rules and policies 

against officers who break them. In his testimony to the Commission, Jonathan Blanks argued that 

without genuine accountability, police departments hold no legitimacy in the public’s perception, 

and without legitimacy law enforcement cannot effectively function.303 Blanks argues that: 

there is a perception of lack of accountability all over America [and] establishing 

accountability at all levels of police interaction with the public is imperative to 

restoring police legitimacy and increasing public safety.304 

Evidence and expert testimony reviewed by Commission staff shows that some law enforcement 

agencies and associations agree, and are taking steps to reduce problematic policing through 

various forms of internal accountability. 

As a guiding principle for police departments, PERF recommends that officers have a “duty to 

intervene.”305 They should be trained to detect warning signs that another officer might be moving 

toward engaging in excessive or unnecessary force, and should move to intervene before the 

situation escalates. Similarly, Maurice Punch, Visiting Professor at the Mannheim Center at the 

London School of Economics, argues that “police agencies are not held to be irredeemable when 

found to have committed offenses, but are assumed to be capable of reform and having public 

confidence in them restored.”306 

Other policing oversight groups and even some police chiefs attribute eroding trust and growing 

tension between the police and communities of color to be the consequence of a “warrior 

 

303 Blanks, Briefing Transcript at 197. 

304 Id. 

305 Police Executive Research Forum, Guiding Principles on Use of Force, supra note 28 at 25. 

306 Maurice Punch, Police Corruption: Deviance, Accountability, and Reform in Policing (Oxfordshire: Willan 

Publishing, 2009), at 9. 
56 Police Use of Force 

mindset”307 brought on by the widespread militarization of local police units across the country 

over the last several decades. 308 Several police chiefs at the 2015 PERF national conference stated 

that there needs to be a shift away from officers seeing themselves as “warriors” and instead toward 

seeing themselves as the “guardians” of the communities they serve.309 The Police Chief of Elk 

Grove, California, Robert Lehner stated that the warrior mindset of policing has been a component 

of policing for at least the past 40 years, with little discussion about being “guardians.”310

Leesburg, Virginia Police Chief Joseph Price asserted that police officers need to be trained that: 

at times they may need to fight like a warrior, but most of the time they need to 

have the mindset of a guardian. A warrior comes in, takes over, does what he needs 

to do, and leaves. That’s not what we want our cops to do.311 

Several other law enforcement and criminal justice experts also agreed that many excessive use of 

force cases are a result of this type of mentality, because officers believe that they cannot back 

down or de-escalate a situation.312 Price argues that: 

Many inappropriate uses of force result from officers thinking, “I can’t back down; 

I need to win at all costs.” But that’s not smart policing or effective tactics. We 

need to do a better job of training officers to control their adrenaline and try to 

defuse physical confrontations.313

According to a Pew Research Center survey conducted by the National Police Research Platform, 

72 percent of officers believe that officers who consistently do a poor job are not held 

accountable.314 Barely one quarter of surveyed officers either agreed or strongly agreed that 

officers who consistently do a poor job are held accountable (24 percent and 3 percent, 

respectively).315 But, according to Samuel Walker, a nationally recognized expert on police 

accountability, one of the issues is that “there’s really no good research on internal affairs units.”316

 

307 American Civil Liberties Union, War Comes Home, 2014, 

https://www.aclu.org/sites/default/files/field_document/jus14-warcomeshome-text-rel1.pdf. 

308 See e.g., Peter Kraska and Victor Kappeler, “Militarizing American Police: The Rise and Normalization of 

Paramilitary Units,” Social Problems vol. 44, no. 1 (1997); see also Peter Kraska, “Researching the Police-Military 

Blur: Lessons Learned,” Police Forum vol. 14, no. 3 (2005). 

309 Police Executive Research Forum, Re-Engineering Training on Police Use of Force, Critical Issues in Policing 

Series, 2015, http://www.policeforum.org/assets/reengineeringtraining1.pdf. 

310 Ibid. at 28-29. 

311 Ibid. 

312 Ibid. 

313 Ibid. at 29. 

314 Rich Morin, Kim Parker, Renee Stepler, and Andrew Mercer, “Behind the Badge,” Pew Research Center, 2017, 

http://www.pewsocialtrends.org/2017/01/11/behind-the-badge./. 

315 Ibid. 

316 Ryan Reilly, “Here’s What Happens When You Complain to Cops about Cops,” Huffington Post, Oct. 9, 2015, 

http://www.huffingtonpost.com/entry/internal-affairs-police-misconduct_us_5613ea2fe4b022a4ce5f87ce. 
 Police Oversight and Accountability 57 

Therefore, fully understanding what accountability measures are in place and enforced becomes 

difficult to ascertain. 

Moreover, police reform advocates often argue that breaking the “blue wall of silence” is a 

significant obstacle for accountability.317 Some advocates say this is an unwritten code that 

discourages officers from reporting or admitting to unethical behavior by their colleagues, thus 

shielding them from potential consequences; and when officers report unethical behavior, they 

may be ostracized by their colleagues. For instance, Kansas City police detective Max Seifert 

testified in court against a Drug Enforcement Administration agent who was accused of brutally 

beating a civilian. According to Seifert, he was forced into early retirement, lost part of his pension, 

and lost his retirement health insurance because he chose to testify for the defense.318 Seifert went 

on to sue his former agency, and in the ruling the federal judge said, Seifert was 

shunned, subjected to gossip and defamation by his police colleagues, and treated 

as a pariah . . . the way Seifert was treated was shameful and [he] was balkanized 

for crossing the thin blue line.319 

Similarly, in Albuquerque, former police officer Sam Costales sued his department for alleged 

retaliation for testifying against fellow officers after an incident with a civilian.320 His complaint 

alleged that the department was “discouraging other law enforcement officers from testifying 

truthfully and exposing the falsehoods of other ‘brothers in blue.’”321 Costales’ attorney claims 

that the actions taken by the department and police union official “created a hostile and potentially 

 

317 The Marshall Project, “Blue Wall of Silence,” Marshall Project, July, 9, 2018, 

https://www.themarshallproject.org/records/605-blue-wall-of-silence; John Hein and John Franklin, “What is the 

cost of the code of silence?” PoliceOne, Sept. 22, 2016, 

https://www.policeone.com/investigations/articles/223697006-What-is-the-cost-of-the-code-of-silence/; Ryan 

Reilly, “Police Officers Overwhelmingly Agree That Bad Cops Aren’t Held Accountable,” The Huffington Post, Jan. 11, 

2017, http://www.huffingtonpost.com/entry/police-internal-affairs_us_58740d94e4b099cdb0ff0d04; City and 

County of San Francisco, “Department Files Charges with the Police Commission,” May 6, 2016, 

http://sanfranciscopolice.org/article/department-files-charges-police-commission; Vivian Ho, “Internal SFPD 

investigation clarifies alleged offensive language,” San Francisco Chronicle, May 11, 2016, 

https://www.sfchronicle.com/bayarea/article/SFPD-sergeant-suspended-for-alleged-sexual-7462255.php. 

318 Radley Balko, “Why Cops Aren’t Whistleblowers,” Reason, Feb. 25, 2011, 

http://reason.com/archives/2011/01/25/why-cops-arent-whistleblowers; Seifert v. Unified Government of Wyandotte 

Cty., Case No. 11-2327-JTM, *4-5 (D. Kan. June 12, 2013), https://ecf.ksd.uscourts.gov/cgibin/show_public_doc?2011cv2327-202. 

319 Radley Balko, “Why Cops Aren’t Whistleblowers,” Reason, Feb. 25, 2011, 

http://reason.com/archives/2011/01/25/why-cops-arent-whistleblowers. 

320 Samson “Sam” Costales v. Schultz and Albuquerque Police Dep’t, Civ. No. 07-827 MV/ACT (D.N.M. Nov. 12, 

2009), https://www.gpo.gov/fdsys/pkg/USCOURTS-nmd-6_07-cv-00827/pdf/USCOURTS-nmd-6_07-cv-00827-

5.pdf. 

321 Carolyn Carlson, “Officer Who Testified for Unser Sues Police,” Albuquerque Journal, Aug. 28, 2007, 

https://www.abqjournal.com/news/metro/589741metro08-28-07.htm. 
58 Police Use of Force 

life-threatening work environment for Costales, who depends on other officers and deputies to 

back him up.”322 A federal jury in Santa Fe awarded Costales $662,000 in 2009.323

In Baltimore, an officer filed a lawsuit against the department claiming that he was unfairly treated 

after reporting that another officer had brutalized a suspect. The former detective said that he was 

harassed, moved onto night shifts, and denied requests for backup while on duty.324 Individual 

officers are not the only ones who may face criticism from reporting unethical or unlawful 

behavior. Former head and acting consultant for the San Francisco Police Officers Association 

Gary DeLagnes argues that if police officials and supervisors show a commitment to discipline, 

then they may be derided as “bending to outside pressures from ‘cop haters.’”325 These types of 

statements and behaviors show that making meaningful strides toward police accountability may 

be a challenging task, especially when such actions are viewed as inconsistent with policing 

culture, and officers are afraid to report unlawful behavior. 

Police union contract provisions can pose another challenge deterring law enforcement officials 

from holding their officers accountable. Jonathan Smith, former senior litigator for the Justice 

Department’s Civil Rights Division argues that: 

In big cities, where police unions have political clout, rigid union contracts 

restricted the ability for police chiefs and civilian oversight bodies to tackle 

misconduct. As a result, an officer involved in a shooting often cannot be 

interviewed at the scene; [and] internal affairs investigators have to wait days to get 

a statement.326 

Separate and apart from the limitations negotiated union contracts may pose with respect to 

securing meaningful police accountability, state laws can pose additional obstacles. According to 

the Marshall Project, 14 states guarantee an officers’ bill of rights or law enforcement officer’s bill 

 

322 Ibid. 

323 Scott Sandlin, “Ex-Officer Awarded $662,000” Albuquerque Journal, Nov. 26, 2009, 

https://www.abqjournal.com/news/metro/26224624341newsmetro11-26-09.htm. 

324 Justin Fenton, “Whistle-blower officer files lawsuit against Batts, BPD,” Baltimore Sun, Dec. 24, 2014, 

http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-crystal-whistleblower-ratgate-lawsuit-20141223-

story.html; Nick Wing, “Police Union Official Calls Out ‘Snitch’ Cops, Shows Why It’s So Hard To Hold Officers 

Accountable,” Huffington Post, Dec. 28, 2016, http://www.huffingtonpost.com/entry/san-francisco-policesnitch_us_57349f17e4b060aa78197d54; Sebastian Murdock, “‘Rat Cop’ Joe Crystal Shunned from Baltimore Police 

Department after Reporting Officer Brutality,” Huffington Post, June 16, 2015, 

http://www.huffingtonpost.com/2015/06/16/baltimore-joe-crystal_n_7582374.html. 

325 Nick Wing, “Police Union Official Calls Out ‘Snitch’ Cops, Shows Why It’s So Hard To Hold Officers 

Accountable,” Huffington Post, Dec. 28, 2016, http://www.huffingtonpost.com/entry/san-francisco-policesnitch_us_57349f17e4b060aa78197d54. 

326 Jonathan M. Smith, “Opinion: Police Unions Must Not Block Reform,” New York Times, May 29, 2015, 

https://www.nytimes.com/2015/05/30/opinion/police-unions-must-not-block-reform.html. 
 Police Oversight and Accountability 59 

of rights (or LEOBoR as it is commonly called), which is “a set of due-process rights for police 

officers under internal investigation for alleged misconduct.” 327 A standard LEOBoR states that: 

[A]n officer may only be questioned for a reasonable length of time, at a reasonable 

hour, by only one or two investigators (who must be fellow policemen), and with 

plenty of breaks for food and water.328 

In Baltimore, the police department’s LEOBoR came under heavy scrutiny by critics of the police 

force. Specifically, critics challenged the provision that state officers are permitted ten-days as a 

“cooling-off period” before submitting any statement to investigators.329 Samuel Walker, professor 

emeritus at the University of Omaha argues that LEOBoR’s offer a “special layer of due process 

[that] impede accountability, and truly are a key element of our lack of responsiveness to [possible 

excessive force] cases,” such as in the Freddie Gray case.330 

At the Commission’s briefing, the Illinois Police Benevolent and Protective Association’s Sean 

Smoot argued that the 48-hour waiting period or waiting at least “two sleep cycles” is negotiated 

into police contracts because officers need time to process the situation, “particularly those that 

are involved in a high stress, adrenaline infused situations.”331 Officer Smoot argues that memories 

may be inaccurate directly following an incident, thus officers need time to fully process the event 

before investigators question them on the circumstances.332 However, in a review of the empirical 

literature, Professor Walker argues that there is no scientific evidence that supports Smoot’s claim. 

Walker posits that the data on the effect of stress on memory is complex and has produced 

 

327 Eli Hager, “Blue Shield,” Marshall Project, April 27, 2015, https://www.themarshallproject.org/2015/04/27/blueshield. 

328 Ibid. 

329 Md. Code Ann., Pub. Safety § 3-104 (Investigation or interrogation of law enforcement officer). 

330 Eli Hager, “Blue Shield,” Marshall Project, April 27, 2015, https://www.themarshallproject.org/2015/04/27/blueshield. On April 12, 2015, Baltimore police arrested Freddie Gray for fleeing “unprovoked upon noticing police 

presence” and was “arrested without force or incident,” according to court documents (see Statement of Charges, 

State of Maryland v. Freddie Carlos Gray, Jr., Case No. 6B02294074, (D. Md. April 12, 2015), 

https://s3.amazonaws.com/s3.documentcloud.org/documents/1996025/freddie-gray-charging-documents.pdf). 

However, state prosecutor Marilyn Mosby said that Gray was illegally arrested, assaulted, and falsely accused of 

carrying an illegal switchblade. Mosby stated that the officers had put him into a tactical hold before putting him in 

the back of the van and ignored his requests for his inhaler. According to court documents, Gray “suffered a medical 

emergency” while he was being transported and that he was “immediately transported to Shock Trauma via medic,” 

where he arrived in critical condition and died in the hospital. After the autopsy, Deputy Commissioner Jerry 

Rodriguez told the media that Gray “suffer[ed] a very tragic injury to his spinal cord which resulted in his death.” 

BBC News, “Freddie Gray’s death in police custody- what we know,” May 23, 2016, 

http://www.bbc.com/news/world-us-canada-32400497; Kevin Rector, “Freddie Gray case: DOJ won’t charge 

Baltimore police officers,” Baltimore Sun, Sept. 13, 2017, http://www.baltimoresun.com/news/maryland/crime/bsmd-ci-doj-decline-charges-20170912-story.html. 

331 Sean Smoot, Police Benevolent and Protective Association of Illinois, Briefing Transcript at 52-53. 

332 Ibid. 
60 Police Use of Force 

contradictory findings, with some studies showing that stress actually enhances memory.333 He 

further argues that even if the science is valid, police unions do not apply these waiting periods in 

a consistent manner.334 For instance, waiting periods are not extended to crime victims, witnesses, 

suspected criminals, or any other public employees.335 

Other policies that appear in many police union contracts and police bills of rights may also hinder 

internal accountability. Review of contracts showed that these include: clauses that limit 

disciplinary consequences for officers, for example preventing an officer’s history of past 

misconduct from being considered in future cases (appears in contracts in 64 cities and 7 states); 

requirements that police departments erase records of officer misconduct, in some cases after two 

years or less (appears in contracts in 43 cities and 3 states); and of policies disqualifying complaints 

from being investigated if they are submitted too many days after an incident occurs or if an 

investigation takes too long to complete (appears in contracts in 25 cities and 4 states).336 

A 2017 Washington Post investigation found that since 2006, the nation’s 55 largest police 

departments have fired at least 1,881 police officers for various forms of misconduct, including 

conduct unbecoming of an officer, dishonesty, and being charged or convicted of a crime, but they 

later reinstated 451 officers after appeals.337 In one case, the Miami Police Department fired 

detective Reynaldo Goyos after the city’s Firearms Review Board—consisting of three assistant 

chiefs, a police major, and police attorney—found a deadly shooting Goyos was involved in was 

not justified and questioned Goyos’ version of events. Miami Police later rehired Goyos after an 

arbitrator held he did not violate the department’s use-of-force policy.338 The investigation also 

detailed Washington, D.C. Metropolitan Police Department’s ongoing attempts—lasting over 

eight years—to fire an officer after he was convicted of misdemeanor sexual abuse of a teenager.339 

 

333 Samuel Walker, Police Union Contract “Waiting Periods” for Misconduct Investigations Not Supported by 

Scientific Evidence, University of Nebraska at Omaha, 2015, http://samuelwalker.net/wpcontent/uploads/2015/06/48HourSciencepdf.pdf. 

334 It should also be noted that police unions are not the only driver; cities that negotiate and accept these provisions 

with police unions into their contracts likewise do not extend the same process for police officers that they extend to 

civilian witnesses. Ibid. 

335 Ibid. 

336 DeRay McKesson, Samuel Sinyangwe, Johnetta Elizie, and Brittany Packnett, “Police Union Contracts and 

Police Bill of Rights Analysis,” Campaign Zero, 2016, at 3-4, 

https://static1.squarespace.com/static/559fbf2be4b08ef197467542/t/5773f695f7e0abbdfe28a1f0/1467217560243/Ca

mpaign%2BZero%2BPolice%2BUnion%2BContract%2BReport.pdf. 

337 Kimbriell Kelly, Wesley Lowery and Steven Rich, “Fired/Rehired: Police Chiefs are Often Forced to Put Officers 

Fired for Misconduct Back on the Streets,” Washington Post, Aug. 3, 2017, 

https://www.washingtonpost.com/graphics/2017/investigations/police-fired-rehired/?utm_term=.8eef74e1ea6b. 

Among the 451 officers reinstated, 151 were fired for conduct unbecoming of an officer and 88 for dishonesty. At 

least 33 of the officers were charged with crimes, and 17 of them had been convicted, mostly for misdemeanors. 

338 Ibid. 

339 Ibid. 
 Police Oversight and Accountability 61 

At the Commission’s briefing, the Cato Institute’s Jonathan Blanks discussed how restriction of 

officers’ disciplinary files negatively impact communities’ trust in law enforcement.340 After an 

investigation of New York City’s Civilian Complaint Review Board records, Blanks found that 

approximately 40 percent of the 35,000 officers have never received a complaint.341 However, 

roughly 1,000 officers have more than 10 citizen complaints on file. One officer had over 50 

complaints.342 There is one important caveat: without investigating the complaints, it is impossible 

to say whether the officers in question should have been disciplined or discharged. But while these 

1,000 officers represent fewer than 3 percent of the officers in New York City, if these complaints 

represent any misconduct, that means that these officers are 

repeat offenders several times over [and] [m]ultiple complaints against a single 

officer over a period of months or years implies that the officer must at times 

operate too close to the line of impropriety.343 

Blanks testified that although these officers represent only a small portion of the city’s police force, 

they can damage the reputation of the entire department, because the public does not know if the 

department’s supervisors have addressed these complaints. Thus, this absence of public 

information allows negative perceptions, and the belief that the police generally are not responsive 

to the complaints to fester.344 Conversely, releasing the officers’ names and allowing access to 

disciplinary files could have implications for individual privacy of the officers and 

complainants.345 However, some states, such as Florida and Illinois, regularly release officer 

disciplinary files to the public without violating the complainants’ or victims’ rights.346 Walker 

argues that “the public has a right to know what our public officials are doing, and this is especially 

true with our police officers, who have the power to shoot to kill, use force, and deprive people of 

their liberty through stop or arrest.”347 

In April 2018, a new database was released to the public that contained 1,800 disciplinary files 

from the New York Police Department (NYPD) that covered employees who faced departmental 

misconduct charges between 2011 and 2015.348 This release was significant because these records 

 

340 Blanks, Briefing Transcript at 199. 

341 Ibid. 

342 Ibid. at 200. 

343 Ibid. 

344 Ibid. at 202-03. 

345 See, e.g., Privacy Act of 1974, 5 U.S.C. § 552a. 346 Kendall Taggart and Mike Hayes, “Here’s What We Learned from Thousands of Secret NYPD Disciplinary Files,” 

BuzzFeed News, April 16, 2018, https://www.buzzfeed.com/kendalltaggart/nypd-police-misconduct-databaseexplainer?utm_term=.wbQBjK21V#.lvLW9Lyej. 

347 Ibid. 348 The authors of the study note that these files were provided by a source who requested to remain anonymous. 

However, the documents’ legitimacy was verified through more than 100 phone calls to NYPD employees, visits to 

the officers’ homes, interviews with prosecutors and defense lawyers, and a review of thousands of pages of court 

documents. See Kendall Taggart, Mike Hayes, and Scott Pham, “Want to See How the NYPD Disciplines Its 
62 Police Use of Force 

had been off limits to the public since 2016, when the NYPD removed them from public view.349

While these documents are not a complete record of the disciplinary cases during these years, they 

provide the most in-depth and broadest view of how the NYPD has and has not held officers 

accountable.350 

Through their review of the data, reporters found at least 319 officers who had committed fireable 

offenses yet were allowed to keep their jobs, and several only received minor repercussions. For 

instance, at least 250 employees faced allegations of excessive force such as threatening someone, 

getting into a fight, or unnecessarily firing their gun; two school safety officers lost five vacation 

days after using excessive force against students, and one officer lost 20 vacation days after striking 

an individual on the head and threatening to kill two civilians.351 NYPD rules state that “barring 

exceptional circumstances” officers who lie about a “material matter” must lose their jobs; 

however, reporters found more than 100 officers were accused of lying on official reports, under 

oath, or during an internal affairs investigation.352 Repercussions varied from some being fired to 

losing a few days to a month of vacation time.353 

Many officers told the reporters that they felt that the disciplinary system was unfair and not 

applied equitably. Officers told reporters that supervisors often do not hold guilty officers 

accountable, they punish people for reporting the misconduct of fellow officers, or they have biases 

against their employees.354 For instance, an officer reportedly told her supervisor that she needed 

a few days to arrange child care before starting a new assignment, and he charged her with “failure 

to comply with an order” and she was suspended for 122 days and lost more than a month of pay.355

Diane Davis, a former NYPD internal affairs investigator stated that: 

If 10 cops did the same exact thing that was bad, the outcome is different every 

time. If you’ve complained, forget about [keeping your job].356 

 

Employees? Search For Yourself,” BuzzFeed News, April 16, 2018, 

https://www.buzzfeednews.com/article/kendalltaggart/nypd-police-misconduct-database-explainer. 349 Rocco Parascandola and Graham Rayman, “Exclusive: NYPD suddenly stops sharing records on cop discipline 

in move watchdogs slam as anti-transparency,” New York Daily News, Aug. 24, 2016, 

http://www.nydailynews.com/new-york/exclusive-nypd-stops-releasing-cops-disciplinary-records-article1.2764145. 

350 Taggart and Hayes, “Here’s What We Learned from Thousands of Secret NYPD Disciplinary Files,” supra note 

346. 

351 Ibid. 

352 New York Police Department, Patrol Guide, 2016, 

https://www1.nyc.gov/assets/nypd/downloads/pdf/public_information/public-pguide1.pdf. 

353 Taggart and Hayes, “Here’s What We Learned from Thousands of Secret NYPD Disciplinary Files,” supra note 

346. 

354 Kendall Taggart and Mike Hayes, “Secret NYPD Files: Officers Can Lie And Brutally Beat People—And Still 

Keep Their Jobs,” BuzzFeed News, March 5, 2018, https://www.buzzfeednews.com/article/kendalltaggart/secretnypd-files-hundreds-of-officers-committed-serious. 

355 Ibid. 

356 Ibid. 
 Police Oversight and Accountability 63 

A spokesperson for the NYPD told the reporters that: 

The overwhelming majority of New York City cops come to work every day to do 

good, fight crime, and help people, making this City the safest it has been since the 

1950s. For the few who commit violations, the NYPD’s disciplinary process is 

more rigorous today than ever before.357 

Following this investigation, New York City Mayor Bill de Blasio vowed to pressure the state 

legislature to pass reforms to Civil Rights Law Section 50-a (CVR § 50-a)—the law that keeps 

disciplinary records secret from the public—and Police Commissioner James P. O’Neill stated that 

the department would start releasing reports on disciplinary actions, with the offending officers’ 

names redacted, in hope of increasing transparency.358 Due to an emergency injunction filed by 

the Patrolmen’s Benevolent Association, which is the city’s largest police union, on April 11, 

2018, the State Supreme Court temporarily blocked this order.359 

Body-Worn Cameras 

Body-worn cameras are generally believed to be an effective way to increase police accountability, 

transparency, and build community trust; however, research findings are mixed. Body cameras are 

a relatively recent development, and their usage has steadily increased across a number of 

jurisdictions since the shooting of 18-year-old Michael Brown in Ferguson in August 2014.360 The 

exact number of jurisdictions that fully utilize this technology is not known (at the time of this 

report), but estimates show that about 19 percent of police departments considered their body 

cameras “fully operational” in 2015; and nearly 77 percent either “intend to implement,” were in 

the pilot stage, or have completed the pilot training but have not implemented the program.361

 

357 Taggart and Hayes, “Here’s What We Learned from Thousands of Secret NYPD Disciplinary Files,” supra note 

346. 

358 Press Release: City of New York, “Mayor de Blasio Outlines Core Principles of Legislation to Make the 

Disciplinary Records of Law Enforcement and Other Uniformed Personnel Subject to Disclosure,” Oct. 14, 2016, 

http://www1.nyc.gov/office-of-the-mayor/news/820-16/mayor-de-blasio-outlines-core-principles-legislation-makedisciplinary-records-law; Mike Hayes and Kendall Taggart, “Responding To BuzzFeed News NYPD Investigation, 

Top Officials Call For Change,” BuzzFeed News, March 7, 2018, 

https://www.buzzfeednews.com/article/mikehayes/nypd-police-de-blasio-investigation; Taggart and Hayes, “Here’s 

What We Learned from Thousands of Secret NYPD Disciplinary Files,” supra note 346. 

359 Patrolmen’s Benev. Ass’n of New York, Inc. v. de Blasio, No. 153231/2018, 2018 WL 3036350 (N.Y. Sup. Ct. 

June 19, 2018). 

360 See e.g., Shira A. Shiendlen, “Will the Widespread Use of Police Body Cameras Improve Accountability? Yes, 

Technology in Latin America,” Americas Quarterly, Spring 2015, http://www.americasquarterly.org/content/yespeople-behave-differently-when-theyre-being-watched. 

361 Lafayette Group, Major Cities Chiefs and Major County Sheriffs: Technology Needs—Body Worn Cameras, U.S. 

Dep’t of Homeland Security, Office of Emergency Communications, 2015, at ii,

https://assets.bwbx.io/documents/users/iqjWHBFdfxIU/rvnT.EAJQwK4/v0. 
64 Police Use of Force 

Expert panelist Montague Simmons testified that body-worn cameras offer an easy way to hold 

officers accountable for their actions or clear them of any alleged wrongdoings.362 The Leadership 

Conference on Civil and Human Rights’ (LCCHR) former president Wade Henderson also issued 

a letter stating that: 

By documenting what happens, these cameras can become a new mechanism of 

police accountability, and can provide an additional source of evidence for 

administrative and court proceedings.363 

Arguably, given the lack of federal police reporting data, camera footage could offer some insight 

into use of force incidents, because it would supplement the flawed data already collected (or lack 

thereof), and because it would add visual documentation about the interactions. For example, in 

2015, the Washington Post found 71 police shootings were recorded by body cameras. And within 

just the first six months of 2016, 63 shootings were captured on body cameras, which almost equals 

the total number as the previous year.364 This is new evidence arguably showing that in 2016, there 

was a 38 percent increase of fatal officer-involved shootings that were captured by cameras.365 

Another example of how body-worn cameras can be used to increase public trust, transparency, 

and accountability came out of Asheville, North Carolina in April 2018. The city released footage 

from nine body-worn cameras that showed a white officer, Christopher Hickman, beating, tazing, 

and choking an African-American man, Johnnie Jermaine Rush, who was suspected of 

jaywalking.366 Asheville’s interim City Manager Cathy Ball and Police Chief Tammy Hooper filed 

a petition for the release of the video, which was granted by a Superior Court Judge, in the interest 

of public transparency.367 After viewing the footage, Chief Hooper ordered Hickman’s 

termination, and the charges against Mr. Rush were dismissed.368 In an open letter to the city, Ball 

and Hooper stated that: 

 

362 Montague Simmons, Executive Director, Organization for Black Struggle, Briefing Transcript at 31. 

363 Wade Henderson, Letter to President’s Task Force on 21st Century Policing, The Leadership Conference on 

Civil and Human Rights, 2015, at 1, https://www.bja.gov/bwc/pdfs/2015-01-30-letter-to-task-force-on-21st-centurypolicing.pdf. 

364 Washington Post, “2018 Police Shootings database,” supra note 87; Wesley Lowery, “More police shootings are 

being caught on camera—but many of those videos aren’t released to the public,” Washington Post, Sept. 22, 2016, 

https://www.washingtonpost.com/news/post-nation/wp/2016/09/22/more-police-shootings-are-being-caught-oncamera-but-many-of-those-videos-arent-released-to-the-public/. 

365 Ibid. 

366 Eric Levenson, “North Carolina city releases bodycam videos related to beating of jaywalking suspect,” CNN, 

April 3, 2018, https://www.cnn.com/2018/04/02/us/asheville-police-body-camera/index.html. 

367 Open letter from Asheville City Council, Interim City Manager Cathy Ball and Chief Tammy Hooper, April 5, 

2018, http://coablog.ashevillenc.gov/2018/04/asheville-apd-excessive-use-of-force-investigation-all-press-releasesgraphics-and-documents-in-one-place/. 

368 Levenson, “North Carolina city releases bodycam videos related to beating of jaywalking suspect,” supra note 

366. 
 Police Oversight and Accountability 65 

This incident has created a loss of trust within the community, particularly among 

people of color. The City of Asheville understands that there is substantial work to 

do to restore the public’s trust . . . We are dedicated to being leaders who will create 

a culture where all people are treated with dignity and respect, and will hold 

accountable any employee who does not conduct themselves in this manner.369 

Support for the benefits of implementing body-worn camera policies are also found in existing 

policing literature. For instance, researcher Harold Rankin found that body-worn cameras 

significantly reduced citizen complaints against officers.370 Rankin’s evaluation of the Mesa, 

Arizona Police Department found that during the first eight months of deployment, the officers 

with body cameras received three times fewer complaints filed against them than the ones without 

body cameras.371 In a related study, Michael White, Professor of Criminology at Arizona State, 

found that body cameras reduced the overall number of citizen complaints.372 He found that bodyworn cameras resulted in improved behavior among both police officers and citizens, expedited 

resolutions of citizen complaints or lawsuits, and in turn improved evidence for arrest and 

prosecution.373 

Research also suggests that body-worn cameras may be particularly helpful when officers inform 

civilians when they are recording. Early studies have shown that there may be a “civilizing effect” 

on both officer and civilian behavior.374 Although there are limits on the data, researchers have 

found that both parties tend to behave more calmly when recorded and if the officer continues to 

remind suspects that they are being recorded.375 Researchers also offer an important caveat: they 

found that cameras need to be turned on at the beginning of an encounter, because if an officer 

turns the camera on once an incident is underway, this action may actually escalate the situation 

and make people more aggressive.376 In sum, evidence regarding the “civilizing effect” and 

effectiveness of body-worn cameras is currently scarce. 

 

369 Open letter from Asheville City Council, Interim City Manager Cathy Ball, and Chief Tammy Hooper, Asheville 

City Source, April 5, 2018, http://coablog.ashevillenc.gov/2018/04/asheville-apd-excessive-use-of-forceinvestigation-all-press-releases-graphics-and-documents-in-one-place/. 

370 Lindsay Miller, Jessica Toliver, and Police Executive Research Forum, Implementing a Body-Worn Camera 

Program: Recommendations and Lessons Learned, Office of Community Oriented Policing Services, at 6, 2014, 

https://www.justice.gov/iso/opa/resources/472014912134715246869.pdf. 

371 Ibid. 

372 Michael White, Police Officer Body-Worn Cameras: Assessing the Evidence, Office of Community-Oriented 

Policing Services, 2014, https://www.bja.gov/bwc/pdfs/DiagnosticCenter_PoliceOfficerBody-WornCameras.pdf. 

373 Ibid. White suggests interpreting these findings with caution given the possibility that the decline in complaints 

may have come as a result of improved citizen behavior or improved office behavior. 

374 Ibid. 

375 Miller, Toliver, and Police Executive Research Forum, supra note 370. 

376 Damien Gayle, “Police with body cameras receive 93% fewer complaints—study,” Guardian, Sept. 29, 2016, 

https://www.theguardian.com/uk-news/2016/sep/29/police-with-body-cameras-receive-93-fewer-complaints-study. 
66 Police Use of Force 

Empirical evidence on whether body cameras reduce use of force shows mixed results. For 

instance, Rialto, California’s police department has seen a decline in complaints since they 

implemented their body-worn camera policy.377 However, in Phoenix, Arizona researchers found 

no significant difference in the behavior of officers who wore cameras compared to those who did 

not.378 Similarly, in a study of the Washington, D.C. police department, researchers found that 

body cameras did not seem to have any effect on the amount of citizen complaints or officers’ use 

of force.379 Chief of D.C. Police Peter Newsham said that they were surprised at the result, since 

many believe that body cameras would change behavior. He also stated that perhaps the lack of a 

significant effect could be due to the fact that his officers “were doing the right thing in the first 

place.”380 Harlan Yu, a researcher at Upturn, argues that this study may call into question whether 

departments should be using their resources to purchase cameras at all, especially if the cameras 

do not seem to be decreasing use of force incidents.381 However, Newsham said that he does not 

believe this study suggests that body-worn cameras have no value, and argues that cameras are 

“really important for legitimacy for the police department . . . when we say something to be able 

to back it up with real-world view that others can see.”382 

But based on available research, the use of body-worn cameras generally has support from a variety 

of sources (e.g., activists, police officers and officials, government leaders), and consensus that 

they may be helpful in curtailing rude or inappropriate remarks from officers and aggressive 

behaviors from civilians.383 Some advocates also argue that body cameras alone cannot solve the 

problem of excessive use of force and biased policing, when they occur. For example, researchers 

at Campaign Zero, an organization working to end police violence, reviewed policies from the 30 

largest cities that had publicly available body-worn camera policies (see Table 1 on page 68 below) 

to examine if these new technologies are being implemented in ways that ensure accountability 

and fairness, while protecting civilians’ rights.384 In terms of accountability, “[a] policy is only as 

good as its enforcement”; thus this factor is significant because it “reflects how a department 

 

377 Miller, Toliver, and Police Executive Research Forum, supra note 370. 

378 Ibid. 

379 Nell Greenfieldboyce, “Body Cam Study Shows No Effect On Police Use of Force or Citizen Complaints,” NPR, 

Oct. 20, 2017, https://www.npr.org/sections/thetwo-way/2017/10/20/558832090/body-cam-study-shows-no-effecton-police-use-of-force-or-citizen-complaints. 

380 Ibid. 

381 Ibid. 

382 Ibid. Michael White, researcher at Arizona State University who studies body-worn camera policies stated that 

this neutral effect in D.C. is to be expected because the department went through a decade of federal oversight to 

reform the department. White stated, “They’re hiring the right people; they’ve got good training; they’ve got good 

supervision; they’ve got good accountability mechanisms in place. When you have a department in that kind of 

state, I don’t think you’re going to see large reductions in use of force and complaints, because you don’t need to. 

There’s no large number of excessive uses of force that need to be eliminated.” 

383 U.S. Dep’t of Justice, Bureau of Justice Assistance, “Body-Worn Camera Toolkit,” 

https://www.bja.gov/bwc/topics-research.html (last accessed Oct. 31, 2018). 

384 Campaign Zero, Tracking Body Camera Implementation, 2015, 

https://static1.squarespace.com/static/55ad38b1e4b0185f0285195f/t/56380ee4e4b05938aac0c6bc/1446514404671/C

ZBodyCameraImplementationReport.pdf. 
 Police Oversight and Accountability 67 

ensures its policy will be followed and how it uses body camera footage for discipline.”385 The 

Brennan Center found that 8 of the 23 agencies in their study did not have explicit policies 

requiring officers to explain why an incident was not recorded when they were required to have 

recorded it.386 Eighteen of the 24 agencies did not have disciplinary policies regarding failures to 

record, demonstrating a general lack of enforcement by agency officials.387 For instance, in 

Chicago, researchers found as many as 80 percent of police department dash cams were lacking 

audio, which the department attributed to “officer error” and “intentional destruction.”388 In 

Albuquerque, Officer Jeremy Dear (who had a history of excessive force allegations) was fired 

after he repeatedly failed to activate his camera just before using force against a civilian, including 

just before fatally shooting a teenage girl.389 The department’s policy states in part that: 

. . . all sworn department personnel will record each and every contact with a citizen 

during their shift that is the result of a dispatched call for service, arrest warrant, 

search warrant or traffic stop . . . It will be the responsibility of the primary officer 

to ensure that the incident will be recorded in its entirety . . . Failure to record a 

contact under the listed specifications may result in discipline.390 

Even after the department explicitly told Officer Dear to record all of his interactions with citizens, 

he still requested to use his camera in “offline” mode, meaning that he would have been able to 

delete footage before it was uploaded to the server—although the department denied his request.391

But despite the repeated use of force allegations and fatal shooting, plus Dear violating department 

policy, in November 2015, the city’s Personnel Board voted to reinstate Officer Dear to the police 

force.392 While Dear had been fired for violating the city’s policy regarding the use of body 

 

385 Brennan Center for Justice, “Police Body-Worn Camera Policies,” https://www.brennancenter.org/body-camcity-map?splash (last accessed Oct. 31, 2018). 

386 Ibid. 

387 Ibid. 

388 Ibid. See also Radley Balko, “A new report shows the limits of police body cameras,” Washington Post, Feb. 

2016, https://www.washingtonpost.com/news/the-watch/wp/2016/02/05/a-new-report-shows-the-limits-of-policebody-cameras/?utm_term=.a728925f5d0e. 

389 Joseph Kolb, “Albuquerque policeman who shot woman fired over camera lapse,” Reuters, Dec. 1, 2014, 

https://www.reuters.com/article/us-usa-police-new-mexico-idUSKCN0JG04N20141202. As of June 2017, the judge 

trying Dear’s case in the 2014 fatal shooting of Mary Hawkes ruled that he would be tried separately from the city of 

Albuquerque; see KRQE News, “Judge: Former officer who shot teen will be tried separately from city,” June 23, 

2017, http://www.krqe.com/news/judge-former-officer-who-shot-teen-will-be-tried-separately-fromcity_20180104024702685/900209337. 

390 Paul Guerin, Dan Cathey, Craig Pacheco, Alex Tonigan, Alex Adams, Sam Torres, and Erin Coleman, City of 

Albuquerque Police Department On Body Camera System Research, University of New Mexico, Institute for Social 

Research, 2016, at 5, https://www.cabq.gov/police/documents/obcs-report-draft-all-bureaus-masterfinal_v102022016.pdf. 

391 Jeff Proctor, “Email suggests Albuquerque Police Department cops could delete body cam videos,” KRQE, Oct. 

13, 2015, https://www.krqe.com/news/investigations/email-suggests-albuquerque-police-department-cops-coulddelete-body-cam-videos_20180308061648997/1020384212. 

392 Balko, “A new report shows the limits of police body cameras,” supra note 388. 
68 Police Use of Force 

cameras, the Personnel Board reinstated him because they found that the city’s policy was 

unclear.393 Thus, in order to curtail excessive force, departments must enforce policies to ensure 

police are utilizing the cameras as required. Police Chief Miller of Topeka, Kansas told PERF: 

I tell the officers every day: You usually don’t get hurt by the videos you have. 

What hurts you is when you are supposed to have a video but, for whatever reason, 

you don’t.394

Table 1: Available Body Camera Policies from the largest 30 cities 

Department Coverage1 Fairness2 Transparency3 Privacy4 Accountability5

Austin 1% 

Baltimore 5% 

Charlotte 100% 

Chicago <1% 

Dallas 2% 

Denver 14% 

Fort Worth 40% 

Louisville 51% 

Los Angeles 8% 

Memphis 23% 

Milwaukee 11% 

New York City <1% 

Phoenix 5% 

San Diego 50% 

San Jose 2% 

Seattle 1% 

Washington, D.C. 13% 

KEY 1

 What percent of the total police force is currently wearing body cameras? 2 Are officers prohibited from viewing footage of critical incidents before making initial 

statements or reports, a common investigative practice used with civilians suspected of a 

crime? 3

 Can the public obtain footage of a deadly force incident once investigations have 

concluded without being subject to the police, the court’s, or the Mayor’s discretion? 4 Is footage deleted after six months or less if it does not depict use of force, detention, 

civilian complaint, or is determined to have evidentiary, exculpatory, or training value? 5

 Are there clear guidelines for how officers who do not follow body camera policy should 

be disciplined? 

Yes 

No 

Unclear 

Source: Campaign Zero, last updated 11.2.15, recreated by USCCR staff 

 

393 KRQE News, “City personnel board explains why APD officer should get job back,” June 21, 2017, 

http://krqe.com/2017/06/21/city-personnel-board-explains-why-albuquerque-officer-should-get-job-back/. 

394 Miller, Toliver, and Police Executive Research Forum, supra note 370 at 29. 
 Police Oversight and Accountability 69 

One significant concern for many community advocates and researchers is the need to implement 

appropriate privacy protections as the usage of body-worn cameras continues to increase 

nationwide.395 A study conducted by the Brennan Center looking at body-worn camera policies 

found serious privacy issues when it came to utilizing cameras as a regular part of policing.396

They argue that body-worn cameras are going to result in a tradeoff between accountability and 

privacy. 

Many community advocates are also concerned with the increased amount of surveillance and “big 

data”397 that these cameras make available to law enforcement.398 Without plans in place to handle 

the large amounts of recorded data and storage of potentially sensitive information, cameras 

increase the monitoring and tracking of citizens and in doing so, raise privacy and safety concerns 

for many community advocates. Senior ACLU Policy Analyst Jay Stanley argues that “[i]f they’re 

not helping with oversight, they’re merely another surveillance device focused especially on 

communities of color.”399 The United States Justice Department has argued that the benefits of 

body cameras will outweigh the concerns, but also acknowledges that the privacy issues around 

the storage and sharing of recordings raise legitimate concerns that has not been fully addressed.400 

 

395 See Edwards Statement at 6; Barak Ariel, William Farrar, Alex Sutherland, “The Effect of Police Body-Worn 

Cameras on Use of Force and Citizens’ Complaints Against the Police: A Randomized Controlled Trial,” Journal of 

Quantitative Criminology, vol. 31, no. 3 (2015); Lynsey Dubbeld, “Observing Bodies. Camera surveillance and the 

significance of the body,” Ethics and Information Technology, vol. 5, no. 3 (2003); Miller, Toliver, and Police 

Executive Research Forum, supra note 370. 

396 Brennan Center for Justice, “Police Body-Worn Camera Policies,” https://www.brennancenter.org/body-camcity-map?splash (last accessed Oct. 31, 2018). 

397 “Big data” refers to extremely large data sets that can reveal patterns, associations, and trends about human 

interactions and behaviors. Commonly concerns of “big data” relate to the overreach of government monitoring and 

surveillance. See David Lyon, “Surveillance, Snowden, and Big Data: Capacities, consequences, and critique,” Big 

Data & Society, vol. 1, no. 2 (2014). 

398 According to documents obtained by Guardian reporters, NYPD infiltrated a small group of Black Lives Matters 

activists during the mass protests in 2014 and 2015 over the death of Eric Garner. Attorneys for the group argue that 

the documents raise serious legal questions about whether the NYPD was acting in compliance with the 

department’s intelligence-gathering rules and if the police surveillance plan had been authorized by the formal 

committee meant to oversee these types of operations. Michael Price, counsel at the Brennan Center, says it is 

difficult to know if the NYPD’s actions are legal, because the obtained documents did not make clear if there was in 

fact an investigation underway. But the fact that the department retained photos and videos raises legal questions, 

because under New York law, police are not allowed to retain information about public events, unless it relates to 

unlawful activity. See George Joseph, “NYPD officers accessed Black Lives Matter activists’ texts, documents 

show,” Guardian, April 4, 2017, https://www.theguardian.com/us-news/2017/apr/04/nypd-police-black-livesmatter-surveillance-undercover. 

399 Nick Wing, “Police Body Cameras are Pointless Unless Cops Use Them Correctly,” Huffington Post, Sept. 28, 

2016, http://www.huffingtonpost.com/entry/police-body-cameras-charlotte_us_57eab405e4b0c2407cd9e77f. 

400 This statement was a reflection of the Obama Administration’s Justice Department and at the writing of this 

report, the Trump Administration has not taken a position on the use of body cameras and their policies. See e.g., 

Miller, Toliver, and Police Executive Research Forum, supra note 370; Stav Ziv, “Study Finds Body Cameras 

Decrease Police’s Use of Force,” Newsweek, Dec. 28, 2014, http://www.newsweek.com/amidst-debate-study-findsbody-cameras-decrease-polices-use-force-295315. 
70 Police Use of Force 

Another debate that has been raised is whether officers should be allowed to view and delete videos 

before they are uploaded to the police agency’s server. In a letter to the President’s Task Force on 

21st Century Policing (Task Force), Wade Henderson, then-President of the LCCHR, argued that 

police officers must be prohibited from viewing the footage before filing their reports in order to 

preserve the independent value of their evidence.401 The more than 200 organizations that the 

LCCHR represents (including the ACLU) recommended that police footage should be logged in a 

server, and access to the footage should be limited to ensure the independent evidentiary value of 

an officer’s recollection of the events. Further, the LCCHR letter stated that: 

Officers should not see police-operated camera footage before filing their reports, 

because such pre-report viewing effectively eliminates the officer’s independent 

recollection of the event as a source of evidence.402 

In contrast, PERF found that a majority of police executives they consulted were in favor of 

allowing officers to review camera footage, prior to making a statement about an incident that 

occurred.403 Police executives believe that this approach provides officers and their supervisors the 

best evidence of what actually took place.404 Police Chief Miller of Topeka, Kansas argues that if 

an officer is not allowed to review the footage and it conflicts with the officer’s statement after the 

fact, this can create unwarranted doubts about the officer’s credibility. Miller stated that: 

What we are after is the truth. If you make a statement that you used force because 

you thought a suspect had a gun but the video later shows that it was actually a cell 

phone, it looks like you were lying. But if you truly thought he had a gun, you were 

not lying—you were just wrong. An officer should be given the chance to make a 

statement using all of the evidence available; otherwise, it looks like we are just 

trying to catch an officer in a lie.405 

However, police executives who favor review state that officers will be held accountable for their 

actions regardless if they were allowed to watch the video prior to making their statement. Police 

Chief Burbank of Salt Lake City, Utah stated that “[o]fficers are going to have to explain their 

actions, no matter what the video shows.”406 Similarly, Police Chief Frazier of Surprise, Arizona 

stated that “[i]f an officer has acted inappropriately, and those actions were recorded, the officer 

cannot change the record and will have to answer for his or her actions. What will be gained by a 

review of the video is a more accurate accounting of the incident.”407

 

401 Henderson, Letter to President’s Task Force on 21st Century Policing, supra note 363. 

402 Ibid. 

403 Miller, Toliver, and Police Executive Research Forum, supra note 370 at 29. 

404 Ibid. 

405 Ibid. 

406 Ibid. 

407 Ibid. 
 Police Oversight and Accountability 71 

Other law enforcement officials were not in favor of officers viewing the footage before making 

their statements. They argue that “the truth—and the officer’s credibility—are better served if an 

officer is not permitted to review footage of an incident prior to making a statement.”408 Major 

Mark Person of the Prince George’s County Police Department in Maryland argues that: 

In terms of the officer’s statement, what matters is the officer’s perspective at the 

time of the event, not what is in the video. That perspective is what they are going 

to have to testify to. If officers watch the video before making a statement, they 

might tailor the statement to what they see. It can cause them to second-guess 

themselves, which makes them seem less credible.409

In 2014, the Obama Administration announced the creation of a new Task Force that comprised 

law enforcement and community leaders working in collaboration with the DOJ’s Community 

Oriented Policing Services (COPS).410 The Task Force was charged with “promot[ing] effective 

crime reduction while building public trust.”411 And the administration announced that it would 

create a new $263 million Community Policing Initiative, which would increase the use of bodyworn cameras, expand training, and provide additional resources to law enforcement agencies.412 

As a central goal of the Task Force was to increase public trust, researchers with the LCCHR and 

Upturn wanted to evaluate body-worn camera policies from 75 police departments to determine if 

agencies had policies in place to meet the Task Force’s goals.413 The researchers evaluated each 

policy on eight criteria established by their “Civil Rights Principles on Body Worn Cameras.”414

They found that as of November 2017, out of 69 of the major city departments in the U.S., 62 had 

body-worn camera programs with policies in place.415 However, over a third (28 of 68) do not 

make these policies easily and publicly available on their department’s website, and many had to 

be found externally on other websites. The researchers also found that while none of the surveyed 

departments satisfied all criteria, many have adopted strong policies in one or more of the criteria. 

 

408 Ibid. 

409 Ibid. 

410 Press Release: Office of the Press Secretary, White House, Fact Sheet: Strengthening Community Policing, 2014, 

https://obamawhitehouse.archives.gov/the-press-office/2014/12/01/fact-sheet-strengthening-community-policing. 

411 Ibid. 

412 Ibid. 

413 Leadership Conference on Civil and Human Rights & Upturn, Police Body Worn Cameras: A Policy Scorecard, 

at 3, 2017, https://www.bwcscorecard.org/static/pdfs/LCCHR%20and%20Upturn%20-

%20BWC%20Scorecard%20v.3.04.pdf. 

414 These “Civil Rights Principles on Body Worn Cameras” are defined by the organizations as among the most 

important factors in determining whether the proper policy safeguards are in place to protect the civil rights of 

recorded individuals. The eight criteria are if departments: make the policy publicly available and readily available; 

limits officer discretion on when to record; addresses personal privacy concerns; prohibits officer pre-report 

viewing; limits retention of footage; protects footage against tampering and misuse; makes footage available to 

individuals filing complaints; limits the use of biometric technologies. Ibid. 

415 Leadership Conference on Civil and Human Rights & Upturn, supra note 413. 
72 Police Use of Force 

Researchers at PolicyLink believe that establishing national standards to guide police departments 

is a critical next step to bring the use of body-worn cameras to scale in law enforcement agencies 

across the country.416

In 2015, the Justice Department launched two initiatives to promote the use of body cameras in 

police departments across the country. 417 One was a new pilot grant program that would help local 

law enforcement agencies develop, implement, and evaluate body-worn camera programs. The 

other was an online clearinghouse of resources to help law enforcement and communities plan and 

implement body-worn camera programs.418 The grant initiative is still ongoing through the DOJ, 

the Office of Justice Programs (OJP), and the Bureau of Justice Assistance (BJA). BJA estimated 

in 2017 that it would make up to 63 awards that will be for a two-year period with an estimated 

total cost of $17 million.419 The online initiative is also ongoing and is a toolkit that compiles 

information about body-worn camera policies and explains the developing body of knowledge on 

cameras for law enforcement, criminal justice professionals, advocacy organizations, and 

community members.420

 

In 2017, the OJP requested a budgetary increase for its Body Worn Camera Partnership 

Program.421 The agency requested $7.5 million for a total of $30.0 million (up from $22.5 million 

in 2016) to provide matching grants to state, local, and tribal governments that cover up to half of 

the cost of purchasing body worn cameras.422 OJP stated that agencies receiving these awards will 

be subject to a 50 percent matching requirement and may include costs for data storage 

infrastructure to support body-worn camera systems as part of their matching contribution.423

The analysis of internal accountability mechanisms demonstrates that promising new ideas are 

developing, but the data on whether they are sufficient to prevent excessive force incidents 

committed by some police officers (as well as any systemic problems) is currently lacking. The 

Commission next turns to analyzing various forms of external accountability. 

 

416 Advancement Project and PolicyLink, Limiting Police Use of Force: Promising Community-Centered Strategies, 

supra note 32. 

417 Press Release: Office of the Press Secretary, White House, Fact Sheet: Creating Opportunity for All Through 

Stronger, Safer Communities, 2015, https://www.whitehouse.gov/the-press-office/2015/05/18/fact-sheet-creatingopportunity-all-through-stronger-safer-communities. 

418 U.S. Dep’t of Justice, Bureau of Justice Assistance, “Body-Worn Camera Toolkit,” supra note 383. 

419 U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Assistance, Body-Worn Camera Policy and 

Implementation Program FY 2017 Competitive Grant Announcement, 2016, 

https://www.bja.gov/funding/BWCPIP17.pdf. 

420 See U.S. Dep’t of Justice, Bureau of Justice Assistance, “Body-Worn Camera Toolkit,” supra note 383. 

421 U.S. Dep’t of Justice, FY 2017 Budgetary Request, Building Community Trust, 2016, 

https://www.justice.gov/jmd/file/820796/download. 

422 Ibid. 

423 Ibid. 
 Police Oversight and Accountability 73 

External Oversight 

Many advocates call for external, independent oversight of police agencies, because they believe 

these entities can help build trust with the community, aid in transparency, and hold law 

enforcement accountable. Matthew Fogg, from Law Enforcement Against Prohibition, argues that 

one of the first things that is needed is to offer police officers whistleblower protections so they 

can feel safe coming forward and reporting an excessive force incident.424 Fogg further argues that 

establishing civilian review boards that are truly independent and separate from law enforcement 

and have subpoena power is also essential.425 Similarly, Felix Vargas, from Consejo Latino, argues 

that there needs to be as much transparency as possible with law enforcement in order to regain 

trust, especially among communities of color. Vargas argues that “[w]e need a police oversight 

commission . . . [because] we cannot expect the trust of the police to be restored if we don’t have 

visibility to how the police culture unfolds.”426 

Further, data suggest that police departments that institute external reform measures are witnessing 

promising results. Reporters with Vice News examined 47 of the 50 largest police departments and 

found that since the shooting in Ferguson in 2014, police shootings have decreased.427 While many 

departments have started instituting various reform measures, in seven of the ten cities with the 

largest reductions in police shootings, one thing they had in common was federal intervention—

either through collaborative reform agreements or consent decrees.428 

Vice News reporters found that for the cities that voluntarily adopted the Justice Department’s 

recommended reforms, officer-involved shootings decreased by 32 percent in the first year.429

Those cities with binding (court-ordered) agreements with the Justice Department witnessed a 25 

percent decrease in the year they entered into the agreement.430 And for some departments the 

decline was even more significant: in Chicago, police-involved shooting declined by more than 50 

percent after the Laquan MacDonald shooting in 2014, which prompted an investigation by the 

Justice Department.431 By examining the 50 largest local police departments from 2010 to 2016, 

the researchers were also able to determine that: 

 

424 Fogg, Briefing Transcript at 43. 

425 Ibid. 

426 Felix Vargas, Consejo Latino, Briefing Transcript at 37. 

427 Arthur, et al., “Shot by Cops and Forgotten,” supra note 52. 

428 Ibid. 

429 Ibid. 

430 Ibid.

431 Ibid.; State of Illinois v. City of Chicago, Case No. 17-CV-6260, at *3 ¶ 8 (N.D. Ill. Aug. 29, 2017), 

http://chicagopoliceconsentdecree.org/wp-content/uploads/2018/01/City_of_Chicago_lawsuit_filedcomplaint.pdf. 

While an agreement in principle was reached, Chicago and the Justice Department did not officially enter into a 

consent decree. Furthermore, the Administration has indicated it will not seek one, so Chicago and the Illinois 

Attorney General are negotiating without the Justice Department. See Mitchell Armentrout, “Community groups 

make demands on CPD consent decree: ‘The buck is stopping here,’” Chicago Sun Times, May 15, 2018, 
74 Police Use of Force 

While the remedies varied from city to city, many were the same: [c]reate a civilian 

review board to provide independent oversight, improve officer training, [and] 

update use-of-force policies to stress the importance of de-escalation and the 

sanctity of life.432 

These provisions are typically included in DOJ consent decrees, which are discussed in further 

detail in the final section of this chapter. But first, the data must be disaggregated and more fully 

analyzed. Therefore, section (1) analyzes the data the Commission gathered regarding civilian 

review boards and section (2) analyzes grand juries. Next, the legal and practical issues 

surrounding police’s qualified immunity are examined in section (3), and finally, DOJ consent 

decrees are reviewed in section (4). 

Civilian Review Boards 

Civilian Review Boards are resident-based agencies generally responsible for reviewing 

complaints, issuing recommendations on disciplinary actions, and holding police officers 

accountable for their actions.433 Many policing experts advocate for these boards, believing that 

they can help foster police accountability through their independent authority to investigate and 

audit departments facing allegations of abuse, including unconstitutional use of force, 

unauthorized detentions or arrests, or racial profiling. Further, these boards often include 

overseeing disciplinary issues, even when there is not a potential constitutional violation, which 

can aid in building community trust. The Task Force, Ezekiel R. Edwards, James Chanin, and the 

National Association for Civilian Oversight of Law Enforcement assert that alongside consent 

decrees, civilian review boards are an effective way to promote procedural justice and force 

compliance.434 

The Commission received testimony from the Director of the ACLU’s Criminal Law Reform 

Project Ezekiel Edwards, arguing that a citywide civilian review board (consisting of law 

enforcement agencies, faith-based communities, racial and ethnic minority groups, youth groups, 

and other community organizations) that is able to analyze data, granted independent authority, 

and has the ability to discipline officers would be an effective way to hold police officers 

accountable.435 The National Association for Civilian Oversight of Law Enforcement also 

 

https://chicago.suntimes.com/news/community-groups-make-demands-on-cpd-consent-decree-the-buck-is-stoppinghere/. 

432 Ibid. (discussing remedies typically included in DOJ consent decrees). 

433 See West’s Encyclopedia of American Law, “Civilian Review Boards,” https://legaldictionary.thefreedictionary.com/Civilian+Review+Boards (last accessed Oct. 31, 2018). 

434 The President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century 

Policing, supra note 9 at 26; see also Edwards Statement at 7; Advancement Project and PolicyLink, Limiting Police 

Use of Force: Promising Community-Centered Strategies, supra note 32 at 19-20; James Chanin, written statement 

for the “Police Use of Force: An Examination of Modern Policing Practices” Briefing before the U.S. Commission 

on Civil Rights, April 20, 2015, at 1 [hereinafter Chanin Statement]. 

435 See Edwards Statement at 6. 
 Police Oversight and Accountability 75 

submitted testimony noting that while civilian review boards are an effective tool, there are nearly 

200 of these boards across the country and they vary widely from program to program.436 Building 

on Edwards’ comments, research by National Association for Civilian Oversight of Law 

Enforcement and Policy Link found that highly effective civilian review boards have the following 

elements: 

 The authority to investigate or review complaints of human rights violations by the 

public against the police; 

 The ability to conduct regular audits of police internal complaints and disciplinary 

process and, where necessary, conduct their own investigations; 

 The power to require witnesses to appear and to insist on cooperation from police 

departments and individual officers; 

 The authority to require police agencies to provide information on action taken in 

individual cases, with reasons for inaction; 

 The authority to review and make recommendations on policy and training; and 

 Provide detailed public reports, at least annually, giving relevant data, including the 

type of complaint and the race and gender of the complainant and the accused 

officer.437 

James Chanin’s work in Oakland, California also provides an example of some essential features 

for civilian review boards to act as a mechanism to ensure compliance and modify oversight if 

police agencies cannot initially meet community expectations. Chanin provided written testimony 

to the Commission stating that due to the Oakland Police Department’s failure to comply with a 

previous consent decree, he and his colleagues filed a lawsuit to bring the department under 

receivership.438 Then, as the receivership hearing date neared, Chanin and colleagues were able to 

reach an agreement with the Oakland Police Department. This agreement led to the subsequent 

appointment of a Compliance Director to ensure that the suggested police reforms were carried 

out accordingly.439 These efforts were found to be instrumental in reducing the number of 

complaints against the police, the number of high-speed car chases involving the police, and the 

number of use of force incidents dropped from 822 to 582.440 Chanin testified that a similar strategy 

was also successful in Detroit, Michigan.441

 

436 See National Association for Civilian Oversight of Law Enforcement, written statement for the “Police Use of 

Force: An Examination of Modern Policing Practices” Briefing before the U.S. Commission on Civil Rights, April 

20, 2015, at 1 [hereinafter NACOLE Statement]. 

437 Ibid.; see also Advancement Project and PolicyLink, Limiting Police Use of Force: Promising CommunityCentered Strategies, supra note 32 at 19. 

438 See Chanin Statement at 7. A federal receivership is when a trustee is appointed by the court to manage an 

agency that has been found to be incompetent, usually in its capacity to act constitutionally. 

439 Ibid. at 7-8. 

440 Ibid. at 8-9. 

441 Ibid. at 6-7. 
76 Police Use of Force 

The concern with civilian review boards however is that depending on which model (i.e., 

investigative, review, or auditor442) the level of oversight and authority may be extremely limited. 

Udi Ofer, former Executive Director of the ACLU of New Jersey, warns that in many ways it may 

be better not to have a civilian review board, if it only has little authority.443 He argues that having 

an ineffective civilian review board can give the impression of independent oversight even where 

independence may not actually exist. Pamela Meanes, president of the National Bar Association, 

argues that civilian review boards may not be as beneficial as some community advocates believe. 

She argues that many impacted community members have complained that these boards have 

merely become an extension of the police department; therefore, if there is a police or civilian 

review board, that board needs to represent the community and not individuals who may be 

connected to the department.444 As an example of the concern Ms. Meanes identified, in Baton 

Rouge, Louisiana, an officer who was found guilty of using excessive force by a federal jury was 

elected to the civil service board—a board that oversees public complaints against police.445

Corporal Robert Moruzzi was first accused of excessive force in 2008 after beating up a bar owner, 

which resulted in Mouruzzi’s termination. However, the Baton Rouge Municipal Fire and Police 

Civil Service Board overturned the action, giving him a 90-day suspension instead.446 The second 

case occurred in 2014 where Moruzzi was found guilty of using excessive force against Brett 

Percle, and the court awarded Percle $25,000.447 Moruzzi is now a member of the civil service 

board, worrying some community members, because they are afraid that complaints against the 

department will not be taken seriously. Percle stated that: 

It’s unfathomable that in this state that could happen. There needs to be some type 

of review . . . If he is the standard, the leader, the person to be making these 

decisions, what does that say about the rest of the Baton Rouge Police community? 

It’s bound to repeat itself. He’s bound to do this again.448 

 

442 There are three main types of CRBs. The investigative model is charged with investigating allegations of officer 

abuse and creating findings which are then submitted to the chief of police or mayor. The review model reviews 

findings made by the police department’s own investigation to determine if the findings are fair or not. The auditor 

model does not focus on specific complaints, rather its purpose is to audit the internal review process to ensure its 

fairness. Cited from The Cato Institute, PoliceMisconduct.net, National Police Misconduct Reporting Project,

https://www.unlawfulshield.com/2018/07/what-happened-to-policemisconduct-net/. 

443 Udi Ofer, Getting It Right: Building Effective Civilian Review Boards to Oversee Police, 46 SETON HALL L.

REV. 1033 (2015). 

444 Brian Burghart, “Eyes wide open: What should citizen oversight of law enforcement look like?” Reno News & 

Review, Oct. 16, 2014, http://www.newsreview.com/reno/eyes-wide-open/content?oid=15222461. 

445 Cheryl Mercedes, “The Investigators: Officer’s election to civil service board questioned,” 9 WAFB, April 27, 

2018, http://www.wafb.com/story/38031998/the-investigators-officers-election-to-civil-service-board-questioned. 

446 Ibid. 

447 Maya Lau, “‘I feel vindicated’: Man wins police brutality case against 2 Baton Rouge officers in 2014 drug raid,” 

The Advocate, March 12, 2016, http://www.theadvocate.com/baton_rouge/news/crime_police/article_71714c95-

6b07-55e2-8fed-bf8bace78e7b.html. 

448 Cheryl Mercedes, “The Investigators: Officer’s election to civil service board questioned,” 9 WAFB, April 27, 

2018, http://www.wafb.com/story/38031998/the-investigators-officers-election-to-civil-service-board-questioned. 
 Police Oversight and Accountability 77 

As an alternative to CRBs, Meanes suggests that the state’s attorney’s office should establish an 

investigation department within the office, and that state’s attorneys should handle investigations 

of excessive force, thereby ensuring an independent investigation. Meanes argues that state 

oversight might be more effective and ultimately more beneficial, because it would “assure that 

there is no bias because the state’s attorney’s office is not connected to that local prosecutor.”449 

Tim Lynch of the Cato Institute agrees: “I think [civilian review boards] have several 

weaknesses—they’re very vulnerable to local political manipulations.”450 However, if done right, 

they may be helpful tools. For example, in Washington, D.C., according to Lynch, the board has 

been effective and taken strides to reinforce its independence. The D.C. board requires that four of 

the five-person board cannot have current ties to law enforcement, they oversee a staff of a dozen 

full-time investigators, and the board approves all policies or training recommendations to the 

police department.451 According to Michael Tobin, executive director of the D.C. Office of Police 

Complaints, one of the reasons the board has been effective is because it has authority and 

independence, and these factors help to build community trust, which ultimately makes cities 

safer.452

Despite some public support for these boards, in March 2018, a New Jersey Superior Court judge 

stripped the city of Newark’s Civilian Complaint Review Board (CCRB) of its subpoena and 

investigatory powers, but stated that it could still conduct oversight of the police department.453

The Fraternal Order of Police had challenged the board’s subpoena power, arguing that “it violated 

state statute, an officer’s due process rights, and the attorney general guidelines.”454 The CCRB 

was created “in the wake of a scathing federal report that found it [the Newark police department] 

routinely engaged in excessive force and violated citizen’s constitutional rights.”455 Newark’s 

Mayor Ras Baraka stated that the judge’s decision was: 

 

449 Pamela Meanes, President, National Bar Association, Briefing Transcript at 149. 

450 Priyanka Boghani, “Is Civilian Oversight the Answer to Distrust of Police?” Frontline, July 13, 2016, 

http://www.pbs.org/wgbh/frontline/article/is-civilian-oversight-the-answer-to-distrust-of-police/. 

451 Ibid. 

452 Ibid. 

453 Thomas Moriarty and Karen Yi, “Judge strips power from civilian board created to curb police misconduct,” NJ 

Advance Media for NJ.com, March 14, 2018, 

http://www.nj.com/essex/index.ssf/2018/03/court_rules_police_review_board_cant_have_subpoena.html. 

454 Ibid. 

455 Dan Ivers, “Baraka: Civilian Review Board Will Have the Power to Subpeona, Not Discipline Newark Police,” 

NJ.com, Jan. 20, 2015, 

http://www.nj.com/essex/index.ssf/2015/01/baraka_civilian_review_board_will_have_power_to_su.html; Dan Ivers, 

“Minority, Labor Leaders Call for Civilian Oversight As Part of Newark Police Reform,” NJ.com, July 24, 2014, 

http://www.nj.com/essex/index.ssf/2014/07/minority_labor_leaders_call_for_civilian_oversight_as_part_of_newark

_pd_reform.html (“Among its findings was that up to 75 percent of the pedestrian ‘stop and frisks’ may have been 

unconstitutional, and that the city’s black residents had their rights violated more often than any other sector of the 

community.”). 
78 Police Use of Force 

a setback to criminal justice reform in America and to the critical need for citizens 

to have complete trust that incidents of police misconduct will be dealt with fairly, 

appropriately, and impartially. For now, our CCRB will continue to move forward 

using its power of oversight, but Newark will appeal the court’s decision.456 

Notably, one of the legal issues at stake is whether the DOJ consent decree required the civilian 

review board to have subpoena and other oversight powers. But before turning to the issue of DOJ 

consent decrees, the Commission examines other legal issues related to remedial police oversight. 

Grand Juries 

Grand jury reform has been suggested as a possible way to ensure fairness and justice in police 

accountability. Grand jury proceedings are used as a way of presenting criminal charges.457 In 

these proceedings, prosecutors present evidence of probable cause against the accused, and ask the 

grand jury to return an indictment.458 In these proceedings—which are a wholly secret process—

prosecutors make decisions on their own, yet they are presented as a way to involve the public in 

accountability.459 Some argue that grand jury presentations and deliberations are kept secret in 

order to protect the identities of witnesses and people who have not yet been charged with a 

crime.460 However, even though the decision about whether to issue an indictment is up to the 

grand jury, some legal scholars argue that the secrecy of these proceedings raises questions of 

legitimacy and reduces community trust.461 

Local prosecutions of police officers for fatally shooting individuals are extremely rare events, and 

convicting police officers is even rarer. Researchers found that nationally, 54 officers had been 

charged for fatally killing a civilian while on duty in the ten years since 2005.462 Of these officers, 

three-quarters were white officers and two-thirds fatally shot a black civilian; and in none of these 

 

456 Thomas Moriarty and Karen Yi, “Judge strips power from civilian board created to curb police misconduct,” NJ 

Advance Media for NJ.com, March 14, 2018, 

http://www.nj.com/essex/index.ssf/2018/03/court_rules_police_review_board_cant_have_subpoena.html. At the 

time of this report, the city’s appeal has not moved forward, however, on March 29, 2018, grassroots leaders and 

community advocates held a rally against the judge’s ruling. See Little Red, “Newark rallies in defense of new 

Civilian Complaint Review Board, New York Amsterdam News, April 5, 2018, 

http://amsterdamnews.com/news/2018/apr/05/newark-rallies-defense-new-civilian-complaint-revi/. 

457 Roger A. Fairfax Jr., Grand Jury Discretion and Constitutional Design, 93 CORNELL L. REV. 703, 757 (2008). 

458 Id. 

459 Id. 

460 See Sara Sun Beale, William Bryson, James Felman, Michael Elston, Grand Jury Law and Practice, 2nd ed. 

(New York: Thomson Reuters, 2008). 

461 Colin Taylor Ross, Policing Pontius Pilate: Police Violence, Local Prosecutors, and Legitimacy, 53 HARV. J. ON 

LEGIS. 755 (2016). 

462 Kimberly Kindy and Kimbriell Kelly, “Thousands Dead, Few Prosecuted,” Washington Post, April 11, 2015, 

http://www.washingtonpost.com/sf/investigative/2015/04/11/thousands-dead-fewprosecuted/?utm_term=.2ba8507dd8a3. 
 Police Oversight and Accountability 79 

cases did a black officer shoot a white civilian.463 White police officers have served time in prison 

for killing an African-American civilian in only three cases between 2007 and 2017.464 Stinson 

and colleagues found that between 2005 and May 2017, 82 officers had been arrested on murder 

or manslaughter charges for on-duty fatal shootings.465 During that 13-year time span, 39 were 

convicted (most on lesser manslaughter convictions), while the rest of the cases were either 

pending or resulted in no conviction.466 In a majority of the cases where officers were convicted, 

the circumstances were often considered “exceptional” (e.g., person was unarmed, victim was shot 

in the back, incriminating testimony by fellow officers).467 

Investigative reporter Michael Harriot found that police are 33 percent less likely—compared to a 

civilian—to be convicted of a crime, and the conviction rate for law enforcement to be charged 

with some form of murder is 35 percent—half that of the general population.468 Harriot posits that 

“[t]o charge an officer in a fatal shooting, it takes something so egregious, so over the top that it 

cannot be explained in any rational way.”469 Even when the evidence seems to be clear, the 

majority of the officers whose cases have been resolved have not faced a conviction.470 For 

instance, a 2015 Wall Street Journal report found that approximately 1,200 people had been killed 

by police, but no officers were found guilty of murder or manslaughter that year.471

In two recent high-profile cases, grand juries did not return indictments against the officers who 

killed Michael Brown and Eric Garner, and the lack of transparency on the court proceedings 

greatly undermined public trust.472 These decisions caused many community advocates to question 

 

463 Ibid. “ 

464 Michael Harriot, staff writer for The Root, compared data collected by the Washington Post, “Fatal Encounters,” 

Guardian, and the National Police Misconduct Reporting Project from 2007 through 2017. See Michael Harriot, 

“White Men Can’t Murder: Why White Cops Are Immune to the Law,” The Root, June 22, 2017, 

http://www.theroot.com/white-men-cant-murder-why-white-cops-are-immune-to-the-1796309966. 

465 Philip Stinson, “Charging a Police Officer in Fatal Shooting Case is Rare, and a Conviction is Even Rarer” 

Criminal Justice Faculty Publications, vol. 80 (2017) at 1, https://scholarworks.bgsu.edu/crim_just_pub/80. See

Philip Stinson, John Liederbach, Steven Lab, and Steven Brewer, Policy Integrity Lost: A Study of Law Enforcement 

Officers Arrested, U.S. Dep’t of Justice, 2016, https://www.ncjrs.gov/pdffiles1/nij/grants/249850.pdf (containing 

full report). 

466 Id. 

467 See Kindy, “FBI to sharply expand system for tracking fatal police shootings,” supra note 5. 

468 See Harriot, “White Men Can’t Murder: Why White Cops Are Immune to the Law,” supra note 464. 

469 Ibid. 

470 Ibid. 

471 Zusha Elinson, “More Police Go to Trial in Killings, but Convictions Remain Rare,” Wall Street Journal, Sept. 

23, 2015, https://www.wsj.com/articles/more-police-go-to-trial-in-killings-but-convictions-remain-rare-1443044871. 

472 See e.g., Note, Restoring Legitimacy: The Grand Jury as the Prosecutor’s Administrative Agency, 130 HARV. L.

REV. 1205 (2017), https://harvardlawreview.org/2017/02/restoring-legitimacy/; Caren Morrison, “How the Justice 

System Fails Us After Police Shootings,” New Republic, Dec. 10, 2015, 

https://newrepublic.com/article/125489/justice-system-fails-us-police-shootings; Monica Davey and Julie Bosman, 

“Protests Flare After Ferguson Police Officer Is Not Indicted,” New York Times, Nov. 24, 2014,

http://www.nytimes.com/2014/11/25/us/ferguson-darren-wilson-shooting-michael-brown-grand-jury.html. 
80 Police Use of Force 

the validity of the courts’ decisions, specifically because they felt that the lack of checks and 

balances in the justice system left the door open to bias.473 For example, police officers often bring 

arrests to the District Attorney to prosecute, do investigative work on cases, serve at witnesses, 

and interrogate suspects.474 Some advocates and community leaders accused prosecutors of using 

grand jury proceedings as “political cover” regarding grand jury decisions, or as a way to slowly 

allow public outrage to burnout.475 Others accused prosecutors of not presenting cases aggressively 

enough, due to their working relationships with police.476 

At the Commission’s briefing, panelist Montague Simmons of the Organization for Black Struggle 

described the dissatisfaction with the grand jury process as follows: 

The U.S. Commission on Civil Rights has now cast its eyes upon our community 

because the execution of Mike Brown, the corrupt and inept ways of the 

investigation as follows: The investigation that ended in a fiasco of a grand jury 

that would have amounted to business as usual, except for the anger, tenacity and 

determination of the people who have been in the streets over 250 days.477

At the Commission’s briefing, the Chief Administrative Judge of New York State Courts, the 

Honorable Judge Lawrence Marks, also identified the grand jury system as an area where public 

trust is lacking.478 Judge Marks explained that there is a perceived conflict of interest when 

prosecutors are expected to both zealously investigate and prosecute police officers, while 

maintaining a good and symbiotic relationship with them to fulfill their professional duties.479 He 

clarified that while there are valid policy reasons for grand jury secrecy, that secrecy can also erode 

public confidence in the grand jury process.480 For instance, in the Eric Garner case that he presided 

over, lawyers advocated for release of the transcript of grand jury proceedings, but he felt that the 

law required him to deny it.481 While the judge may have been justified in his decision, it did little 

to assuage public doubts about the grand jury process. 

 

473 Joseph Doyle, Michael Rooney, and Bina Ahmad, “Eric Garner’s Public Defender Says Cops and Prosecutors 

‘Are a Team in Every Case,’” Vanity Fair, Dec. 8, 2014, https://www.vanityfair.com/news/daily-news/2014/12/ericgarner-public-defender-prosecutors-cops. 

474 Ibid. 

475 See, e.g., James Hill and Dean Schabner, “Ferguson Grand Jury ‘Unfair,’ Michael Brown Family Lawyer Says,” 

ABC News, Nov. 23, 2014, http://abcnews.go.com/US/ferguson-grand-jury-unfair-michael-brown-familylawyer/story?id=27117993; Matt Taibbi, “A Year Later, the Eric Garner Grand Jury Decision Still Stings,” Rolling 

Stone, Dec. 3, 2015, http://www.rollingstone.com/politics/news/a-year-later-the-eric-garner-grand-jury-decisionstill-stings-20151203. 

476 See, e.g., Campaign Zero, “Independent Investigations and Prosecutions,” 

http://www.joincampaignzero.org/investigations (last accessed Oct. 31, 2018); Guardian, “Ties that bind,” Dec. 15, 

2015, https://www.theguardian.com/us-news/2015/dec/31/ties-that-bind-conflicts-of-interest-police-killings. 

477 See Briefing Transcript at 29. 

478 Ibid. at 177. 

479 Ibid. at 179. 

480 Ibid. at 179-80. 

481 Ibid. at 180.
 Police Oversight and Accountability 81 

Commission staff have found that some counties have added additional transparency initiatives to 

help assuage public concerns. For instance, in Washoe County, Nevada, the district attorney’s 

office publishes grand jury proceedings, and prosecutors publish their reasoning when they decline 

to indict.482 These reports can be accessed by the public and offer some clarity into the process. 

New York Chief Judge Jonathan Lippman proposes that reforms to the grand jury process would 

need to take several forms. Judge Lippman argues that reforms would first require the physical 

presence of a judge in the grand jury room to make rulings on the evidence. Second, he believes 

that these systems should create a presumption of disclosure in cases where a grand jury elects not 

to charge an officer, if the following three factors are found: (1) the public is already aware of the 

criminal investigation; (2) the public already knows the identity of the subject of the investigation 

or the subject of the investigation consents to disclosure; and (3) there is significant public interest 

in disclosure.483 

As legal scholars have documented, skepticism of the grand jury process is not new; the Ferguson 

and New York cases merely brought public attention to the flaws that were already apparent in the 

system.484 Yet since the grand jury is intended to use its power of subpoena, immunity, and 

contempt to act as a “screen,”485 it has been “hailed . . . as an indispensable buffer of protection 

from malicious and unfounded prosecution by the State.”486 Further, the grand jury incorporates 

“the laypeople’s perspective—the voice of the community—into the charging process.”487 UCLA 

Law Professor Peter Arenella argues that the high likelihood that a defendant will plead guilty 

rather than go to trial when faced with prosecutorial leverage makes grand juries the main avenue 

for community involvement in the criminal justice system.488 As a system for external 

accountability, the grand jury process could be an advantageous mechanism for achieving 

community involvement and provide a streamlined and efficient pre-trial process that can avoid 

transforming the grand jury into a mini-trial,489 protecting the reputation of the accused, and 

 

482 Washoe County District Attorney’s Office, “Officer Involved Shooting Reports,” 

https://www.washoecounty.us/da/newsroom/reports.php (last accessed Oct. 31, 2018). 

483 Chief Judge Jonathan Lippman, Access to Justice: Making the Ideal a Reality, The State of the Judiciary 2015, at 

3-4, http://www.nycourts.gov/whatsnew/pdf/2015-SOJ.pdf. 

484 Note, Restoring Legitimacy: The Grand Jury as the Prosecutor’s Administrative Agency, supra note 472; 

Blanche Bong Cook, Biased and Broken Bodies of Proof: White Heteropatriarchy, the Grand Jury Process, and 

Performance on Unarmed Black Flesh, 85 UMKC L. REV. 567 (2017); James Shannon, The Grand Jury: Tribunal 

of the People or Administrative Agency of the Prosecutor? 2 N.M. L. REV. 141 (1972), 

http://digitalrepository.unm.edu/cgi/viewcontent.cgi?article=1287&context=nmlr. 

485 Note, Restoring Legitimacy: The Grand Jury as the Prosecutor’s Administrative Agency, supra note 472 at 1207; 

Peter Arenella, Reforming the State Grand Jury System: A Model Grand Jury Act, 13 RUTGERS L.J. 1, 7 (1981). 

486 George Edward Dazzo, Opening the Door to the Grand Jury: Abandoning the Secrecy for Secrecy’s Sake, 3 D.C.

L. REV. 139, 139 (1995). 

487 Susan Brenner, The Voice of the Community: A Case for Grand Jury Independence, 3 VA.J. SOC. POL’Y & L. 67 

(1995). 

488 Arenella, Reforming the State Grand Jury System: A Model Grand Jury Act, supra note 485 at 6-8. 

489 See United States v. Calandra, 414 U.S. 338, 349-50 (1974). 
82 Police Use of Force 

ensuring witnesses’ safety.490 In fact, George Washington University Associate Law Professor 

Roger Fairfax Jr. argues that rather than dismantling or aggressively reforming the grand jury 

process, what is needed is more transparency, so the grand jury can be properly viewed as 

consistent with the rule of law and acknowledge its intended function in the U.S. constitutional 

design.491 Fairfax argues that this realization would “restore the grand jury as an engine of criminal 

justice, rather than merely a vehicle.”492 

Qualified Immunity 

Qualified immunity may be another major impediment to holding police accountable for violating 

citizens’ civil rights. In the case of Mullenix v. Luna, the Supreme Court held that: 

The doctrine of qualified immunity shields officials from civil liability so long as 

their conduct “does not violate clearly established statutory or constitutional rights 

of which a reasonable person would have known.” A clearly established right is 

one that is “sufficiently clear that every reasonable official would have understood 

that what he is doing violates that right.”493 

The doctrine of qualified immunity seeks to prevent police officers (or any state actor) from being 

held accountable for violating someone’s constitutional rights unless the violated rights were 

clearly established at the time, and a reasonable officer would have known so.494 

At the Commission’s briefing, Evan Bernick from the Institute for Justice asserted that “in practice, 

qualified immunity provides a near-absolute defense to all but the most outrageous conduct.”495

Bernick argues that qualified immunity ensures that police officers enjoy far more leeway than 

doctors, pilots, and others who routinely make life-or-death decisions under stressful conditions—

and shields police misconduct not only from liability, but meaningful scrutiny as well.496 

In the case of Saucier v. Katz, the Court held that all qualified immunity cases need to follow a 

two-step process of first asking whether the officer’s conduct violated a constitutional right and, if 

so, turn to answering whether that constitutional right was “clearly established.”497 Although this 

rigid requirement was later modified by Pearson v. Callahan to give lower courts discretion in 

 

490 See Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 405 (1959). 

491 Roger A. Fairfax Jr., Grand Jury Discretion and Constitutional Design, 93 CORNELL L.REV. 703, 718 (2008). 

492 Id. at 761. 

493 Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (citations omitted). 

494 Cornell Law School, Legal Information Institute, “Qualified Immunity,” 

https://www.law.cornell.edu/wex/qualified_immunity (last accessed Oct. 31, 2018). 

495 Evan Bernick, Institute for Justice, Briefing Transcript at 118. 

496 Ibid. at 119. 

497 Saucier v. Katz, 533 U.S. 194 (2001) (citing Wilson v. Layne, 526 U.S. 603, 615 (1999)). 
 Police Oversight and Accountability 83 

determining whether this more restrictive analysis was necessary, Saucier still had the effect of 

further insulating officers from potential liability.498 

UCLA Law Professor Joanna Schwartz published an empirical study which showed that the 

practical effect of the Supreme Court’s rulings in recent qualified immunity cases means that 

officers are often immune from liability.499 The results of investigations of misconduct in 44 major 

law enforcement agencies have held that police are immune from liability if a reasonable officer 

could have believed that their conduct was lawful, even if the facts are proven false at a later 

date.500 Schwartz’s research found that the great majority of officers charged with civil rights 

violations were personally immune from liability, and the government paid approximately 99.98 

percent of all liability charges when civil rights violations were found.501 This is because the 

Supreme Court ruled that: 

If an officer reasonably, but mistakenly, believed that a suspect was likely to fight 

back, for instance, the officer would be justified in using more force than in fact 

was needed.502 

Thus, individual police officers are generally immune from suits, provided that their actions were 

objectively reasonable at the time the force was applied, regardless of any mistake of fact.503

Some police reform advocates argue that qualified immunity should be discarded or replaced with 

strict liability.504 Strict liability means that officers would be personally liable for any civil rights 

 

498 Pearson v. Callahan, 555 U.S. 223, 236 (2009). 

499 Joanna Schwartz, Police Indemnification, 89 N.Y.U. L. REV. 885, 893 (2014) (discussing the holdings of Harlow 

v. Fitzgerald, 457 U.S. 800 (1982) and Wilson v. Layne, 526 U.S. 603 (1999) that officers were immune from 

liability unless their conduct violates “clearly established law.”). 

500 Id. at 885. 

501 Id. 

502 Saucier v. Katz, 533 U.S. 194, 205 (2001) (“The concern of the immunity inquiry is to acknowledge that 

reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for 

an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the 

officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as 

to whether a particular amount of force is legal in those circumstances. If the officer’s mistake as to what the law 

requires is reasonable, however, the officer is entitled to the immunity defense.”); see also Bivens v. Six Unknown 

Fed. Narcotics Agents, 403 U.S. 388 (1971) (test of material facts and explanation of various types of immunities 

relevant to law enforcement officers and agencies). 

503 Wayne Beyer contends that the Court combined the rulings of Graham v. Connor with that of Anderson v. 

Creighton to determine police officers’ rights under qualified immunity. See Wayne Beyer, Police Shootings Under 

the Fourth Amendment, RICH. J.L. & PUB. INT. at 7-8 (Winter/Spring 2005), 

https://scholarship.richmond.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1085

&context=jolpi. 

504 William Baude, Is Qualified Immunity Unlawful?, 106 CALIF. L. REV. 45 (2018) (working paper available at: 

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2070&context=public_law_and_legal_theory); 

Evan Bernick, To Hold Police Accountable, Don’t Give Them Immunity, Foundation for Economic Education, May 

6, 2015, https://fee.org/articles/to-hold-police-accountable-dont-give-them-immunity/. 
84 Police Use of Force 

violations, whether or not they were reasonably mistaken in their assessment of the facts of the 

situation and thought that the “excessive force” they used was appropriate.505 In his testimony 

before the Commission, Bernick argues that this could be accomplished in several ways: 

 Officers could be held personally liable for any rights violations. They would carry 

personal malpractice insurance, similar to lawyers, doctors, and other professionals. 

 Police departments could be held to be more fully liable for any rights violations 

by officers, and punitive damages could be assessed against individual officers for 

particularly outrageous conduct. 

 Police departments could be required to insure officers up to a certain amount, after 

that they would have to purchase insurance to cover any costs in excess of that 

amount.506 

However, opposition to qualified immunity may conflict with Supreme Court precedent. In White 

v. Pauly, the Court said that: 

In the last five years, this Court has issued a number of opinions reversing federal 

courts [holding individual officers accountable] in qualified immunity cases.507 The 

Court has found this necessary both because qualified immunity is important to 

“society as a whole.508 

Furthermore, the Court has explained that: 

The resolution of immunity questions inherently requires a balance between the 

evils inevitable in any available alternative. In situations of abuse of office, an 

action for damages may offer the only realistic avenue for vindication of 

constitutional guarantees. It is this recognition that has required the denial of 

absolute immunity to most public officers. At the same time, however, it cannot be 

disputed seriously that claims frequently run against the innocent as well as the 

guilty—at a cost not only to the defendant officials, but to society as a whole. These 

social costs include the expenses of litigation, the diversion of official energy from 

pressing public issues, and the deterrence of able citizens from acceptance of public 

office. Finally, there is the danger that fear of being sued will dampen the ardor of 

all but the most resolute, or the most irresponsible [public officials], in the 

unflinching discharge of their duties.509

 

505 Evan Bernick, Briefing Transcript at 119-20; see also Bernick, To Hold Police Accountable, Don’t Give Them 

Immunity, supra note 504. 

506 Ibid. 

507 White v. Pauly, 137 S. Ct. 548, 551 (2017). 

508 Id. 

509 Harlow v. Fitzgerald, 457 U.S. 800, 813-14 (1982) (citations omitted). 
 Police Oversight and Accountability 85 

Therefore, any reforms to hold individual officers accountable for civil rights violations will have 

to take into account the qualified immunity doctrine, and be carefully tailored to Supreme Court 

doctrine on the matter. On the other hand, since the Court’s decisions on qualified immunity rely 

on its evaluation of “society as a whole”510 and “societal costs,”511 the Court could theoretically 

consider changing conditions that could show an increasing need for police accountability. 

In another recent case Kisela v. Hughes,

512 the Court ruled in favor of an Arizona police officer, 

Andrew Kisela, who shot Amy Hughes outside of her Tucson home. Hughes was having a dispute 

with her roommate Sharon Chadwick and police responded to a 911 call reporting that a woman 

had been seen “acting erratically by hacking at a tree with a knife.”513 However, when the officers 

arrived at the scene, Hughes reportedly was acting calmly and non-threatening. Officers instructed 

her to drop the knife, but there is question if she heard their commands, and Officer Kisela shot 

her four times.514 Hughes then went on to sue the officer for using excessive force. The U.S. Court 

of Appeals for the Ninth Circuit allowed the case to proceed; however, the Supreme Court reversed 

the ruling and stated that Kisela was entitled to qualified immunity.515 The majority opinion did 

not decide if Kisela had violated the Constitution, rather the justices stated that there was no clear 

precedent that would have told Kisela that firing at Hughes amounted to unconstitutional excessive 

force. The Court analogized the situation to another Ninth Circuit case, in which the majority 

reasoned that officers cannot be required to foresee future judicial decisions that would deem their 

actions unconstitutional.516 

In a dissenting opinion, Justice Sonia Sotomayor argued the Court erred by “effectively treating 

qualified immunity as an absolute shield,”517 stating that: 

Because Kisela plainly lacked any legitimate interest justifying the use of deadly 

force against a woman who posed no objective threat of harm to officers or others, 

had committed no crime, and appeared calm and collected during the police 

 

510 White, 137 S. Ct. at 551. 

511 Harlow, 457 U.S. at 814. 

512 Kisela v. Hughes, 138 S. Ct. 1148 (2018), https://www.supremecourt.gov/opinions/17pdf/17-467_bqm1.pdf. 

513 Adam Liptak, “Supreme Court Rules for Police Officer in Excessive Force Case,” New York Times, April 2, 

2018, https://www.nytimes.com/2018/04/02/us/politics/supreme-court-rules-for-police-officer-in-excessive-forcecase.html. 

514 According to the Court documents: “All three officers drew their guns. At least twice they told Hughes to drop 

the knife. Viewing the record in the light most favorable to Hughes, Chadwick said “take it easy” to both Hughes 

and the officers. Hughes appeared calm, but she did not acknowledge the officers’ presence or drop the knife. The 

top bar of the chain-link fence blocked Kisela’s line of fire, so he dropped to the ground and shot Hughes four times 

through the fence. Then the officers jumped the fence, handcuffed Hughes, and called paramedics, who transported 

her to a hospital. There she was treated for non-life-threatening injuries. Less than a minute had transpired from the 

moment the officers saw Chadwick to the moment Kisela fired shots.” See Kisela, 138 S. Ct. at 1151. 

515 Id. 

516 Id. at 1154. 

517 Id. at 1155. 
86 Police Use of Force 

encounter, he was not entitled to qualified immunity . . . [The majority’s] decision 

is not just wrong on the law; it also sends an alarming signal to law enforcement 

officers and the public. It tells officers that they can shoot first and think later, and 

it tells the public that palpably unreasonable conduct will go unpunished . . . there 

is nothing right or just under the law about this.518 

However, despite the obstacle that is qualified immunity, there may be other ways of ensuring 

accountability,519 including the civil review board and grand jury reforms discussed above, as well 

as the court-ordered consent decrees in DOJ cases discussed below. 

Consent Decrees 

After the fatal police shooting of Michael Brown in 2014, the Justice Department released a report 

detailing the systematic civil rights violations perpetrated by the Ferguson Police Department that 

went beyond just investigating the case.520 Despite this move by the DOJ, many wondered if 

substantial change would follow. After filing a federal civil rights complaint and negotiating with 

the jurisdiction, then-Attorney General Eric Holder announced that the Justice Department would 

enter into a consent decree with the agency to help reform the police department. Nonetheless, 

many police reform advocates have been frustrated that the process has been too slow and 

insufficiently comprehensive.521 On the other hand, since the consent decree was opened in 

 

518 Id. at 1158-62. 

519 Even under qualified immunity, studies show police department liability insurance may be increasing police 

accountability. See John Rappaport, How Private Insurers Regulate Private Police, 130 HARV. L. REV. 1539, 1573-

79 (2017). Insurance companies exert pressure on police departments to reduce uses of force that may result in large 

settlements or court-ordered damages that the insurance company must then pay out. Through lower premiums and 

deductibles, private insurance encourages departments to engage in “better training, better use of force policies, 

better screening in the hiring process, and even the firing of bad cops.” Radley Balko, “How the Insurance Industry 

Could Reform American Policing,” Washington Post, March 1, 2016, https://www.washingtonpost.com/news/thewatch/wp/2016/03/01/how-the-insurance-industry-could-reform-americanpolicing/?noredirect=on&utm_term=.ce52b61c1780. While private insurance is “no panacea,” especially since many 

large cities are self-insured and therefore lack the external pressure for reform, insurance companies may 

nonetheless play an important role in increasing police accountability. Ibid. See also Andrea Cann Chandrasekher, 

Empirically Validating The Police Liability Insurance Claim, 130 HARV. L. REV. F. 233, 234-35 (2017). 

520 U.S. Dep’t of Justice, Civil Rights Division, Investigation of the Ferguson Police Department, March 4, 2015, 

https://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/ferguson_police_department_report.pdf. 

521 Monica Davey, “A Year Later, Ferguson Sees Change, but Asks if It’s Real,” New York Times, Aug. 5, 2015, 

https://www.nytimes.com/2015/08/06/us/in-year-since-searing-death-ferguson-sees-uneven-recovery.html; 

Kimberly Kindy and Renae Merle, “Two years after Ferguson, where is the police reform?” Washington Post, Sept. 

25, 2016, https://www.washingtonpost.com/national/two-years-after-ferguson-where-is-the-policereform/2016/09/25/a20112f4-8272-11e6-a52d-9a865a0ed0d4_story.html?utm_term=.a2dffe761dc2; Eric Levitz, 

“What Has Changed Since Ferguson?,” New York Magazine, July 8, 2016, 

http://nymag.com/daily/intelligencer/2016/07/what-has-changed-since-ferguson.html. 
 Police Oversight and Accountability 87 

Ferguson, the Department of Justice has also entered into consent decrees in other cities such as 

Cleveland 522 and Baltimore.523 

Since 1994, the Justice Department has had the jurisdiction to compel law enforcement agencies 

that have been found to have a “pattern or practice”524 of civil rights abuses to reform through 

court-enforceable agreements, known as consent decrees.525 Since then, federal administrations 

have taken different perspectives on these decrees. President George W. Bush’s administration 

was more likely to negotiate reforms with police departments, rather than imposing court-ordered, 

binding agreements.526 His administration investigated about 12 excessive force cases against 

police departments, with two resulting in settlements, and neither were court-ordered consent 

decrees.527 In comparison, the Obama administration opened nearly two dozen investigations into 

various law enforcement agencies around the country. President Obama’s Justice Department 

entered nearly four times more consent decrees than his predecessors.528 According to a January 

13, 2017 statement on the DOJ website: 

Since 2009, the Special Litigation Section of the Justice Department has opened 25 

investigations into law enforcement agencies. The section is enforcing 20 

agreements with law enforcement agencies, including 15 consent decrees and one 

post-judgment order.529 

 

522 Settlement Agreement, United States v. City of Cleveland (N.D. Ohio May 26, 2015), 

https://www.justice.gov/sites/default/files/crt/legacy/2015/05/27/cleveland_agreement_5-26-15.pdf. 

523 Consent Decree, United States v. Police Dep’t of Baltimore City, et al., Case No. 1:17-CV-00099-JKB (D. Md. 

Jan. 12, 2017), https://www.justice.gov/opa/file/925056/download. 

524 See, e.g., U.S. Dep’t of Justice, Civil Rights Division, Special Litigation Section, “Conduct of Law Enforcement 

Agencies: Description of the Laws We Enforce,” https://www.justice.gov/crt/conduct-law-enforcement-agencies 

(last accessed Nov. 1, 2018) (“The Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C § 14141 (recodified at 34 U.S.C. § 12601), allows us to review the practices of law enforcement agencies that may be violating 

people’s federal rights. If a law enforcement agency receives federal funding, we can also use the antidiscrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1968, and Title VI of the Civil 

Rights Act of 1964, which forbid discrimination on the basis of race, color, sex or national origin by agencies 

receiving federal funds. We may act if we find a pattern or practice by the law enforcement agency that systemically 

violates people’s rights. Harm to a single person, or isolated action, is usually not enough to show a pattern or 

practice that violates these laws.”). 

525 Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103–322, 108 Stat. 1796 (42 U.S.C. § 

14141, transferred to 34 U.S.C. § 12601). 

526 Simone Weichselbaum, “Policing the Police,” Marshall Project, May, 25, 2015, 

https://www.themarshallproject.org/2015/04/23/policing-the-police. 

527 Ibid. 

528 Perry Chiaramonte, “Activist use of ‘consent decrees’ to police law enforcement likely to end under Trump, 

Sessions,” Fox News, Dec. 22, 2016, http://www.foxnews.com/us/2016/12/22/activist-use-consent-decrees-topolice-law-enforcement-likely-to-end-under-trump-sessions.html. 

529 U.S. Dep’t of Justice, Office of Public Affairs, “Justice Department Announces Findings of Investigation into 

Chicago Police Department,” Jan. 13, 2017, https://www.justice.gov/opa/pr/justice-department-announces-findingsinvestigation-chicago-police-department/. 
88 Police Use of Force 

Breaking with the previous administration’s approach to police reform, within the first few months 

of the Trump administration, the Justice Department announced that it would be reviewing all 

consent decrees between the agency and U.S. cities.530 In a memorandum, Attorney General Jeff 

Sessions stated: “It is not the responsibility of the federal government to manage non-federal law 

enforcement agencies.”531 Based on available data, this is clearly a departure from the previous 

administration’s stance. For example, in a statement released on September 15, 2017, the Justice 

Department announced that it would significantly scale back its Collaborative Reform Initiative, 

which effectively halts federal efforts to reform local police departments and improve communitypolice relationships.532 Sessions stated that: 

Changes to this program will fulfill my commitment to respect local control and 

accountability, while still delivering important tailored resources to local law 

enforcement to fight violent crimes. This is a course correction to ensure that 

resources to agencies that require assistance rather than expensive wide-ranging 

investigative assessments that go beyond the scope of technical assistance and 

support.533

Some criminal justice experts, law enforcement officials, and police reform advocates are 

concerned that Attorney General Sessions wants to overturn these decrees and what effect this 

might have on police reform moving forward.534 For instance, Baltimore Mayor Catherine Pugh 

and then-Police Commissioner Kevin Davis stated that they were concerned that this move could 

undermine the progress the police department has made thus far.535 Pugh argued that “[a]ny 

interruption in moving forward may have the effect of eroding the trust that we are working hard 

to establish.”536 Moreover, while there is not current data showing whether these reforms aid in 

keeping officers safe, they have been shown to have some positive results. Consent decrees have 

been successful in police departments like Philadelphia, where police shootings have fallen by 

more than half. Other departments with federal oversight (either collaborative reform or consent 

 

530 Office of the Att’y Gen., “Memorandum for Heads of Department Components and United States Attorneys,” 

March 31, 2017, https://www.documentcloud.org/documents/3535148-Consentdecreebaltimore.html. 

531 Ibid. 

532 U.S. Dep’t of Justice, Office of Public Affairs, “Department of Justice Announces Changes to the Collaborative 

Reform Initiative,” Sept. 15, 2017, https://www.justice.gov/opa/pr/department-justice-announces-changescollaborative-reform-initiative. 

533 Ibid. 

534 U.S. Commission on Civil Rights, “U.S. Commission on Civil Rights Urges Department of Justice to Use All 

Available Tools to Work with Police Departments to Ensure Constitutional Policing,” April 24, 2017,

http://www.usccr.gov/press/2017/Statement_04-24-2017-Policing.pdf; David Graham, “Can Trump’s Justice 

Department Undo Police Reform?” The Atlantic, April 4, 2017, 

https://www.theatlantic.com/politics/archive/2017/04/the-beginning-of-the-end-of-federal-police-reform/521847/. 

535 Margaret Hartmann, “Sessions Moves to Roll Back Obama-Era Police Reforms,” New York Magazine, April 4, 

2017, http://nymag.com/daily/intelligencer/2017/04/sessions-moves-to-roll-back-obama-era-police-reforms.html. 

536 Ibid. 
 Police Oversight and Accountability 89 

decrees) saw similar decreases in shootings: this was at a rate of 27 percent on average in the first 

year, which increased to 35 percent in subsequent years (see Chart 8).537 

Chart 8: Federal Interventions from 2010-2016 

Source: Chart created by Vice News,538 (utilizing DOJ data). 

The previous director of the Justice Department’s COPS office, Ron Davis, described Sessions’ 

decision to roll back federal interventions as “incompetent” and “dangerous.”539 He stated, “I think 

it’s dangerous. Not only is that an ideological response; it’s one that’s absent of science and one 

that ignores evidence.”540 Many reform advocates and policing experts worry that the Justice 

Department’s changes in policy will leave local police departments without the resources or the 

impetus needed to institute substantial, cultural changes to reduce shooting incidents.541 Vanita 

Gupta, former Principal Deputy Assistant Attorney General and head of the Justice Department’s 

Civil Rights Division during the Obama Administration, stated that Sessions’ decision to roll back 

 

537 Rob Arthur, “Jeff Sessions is walking away from the best way to reduce police shootings,” Vice News, Dec. 18, 

2017, https://news.vice.com/en_us/article/kznagw/jeff-sessions-is-walking-away-from-the-best-way-to-reducepolice-shootings. 

538 Ibid. 

539 Arthur, et al., “Shot by Cops and Forgotten,” supra note 52. 

540 Ibid. 

541 Arthur, “Jeff Sessions is walking away from the best way to reduce police shootings,” supra note 537. On April 

24, 2017, the Commission majority released a statement concerning Sessions’ memorandum, which urged the 

Justice Department to continuing holding police departments accountable to ensure the civil rights of all citizens and 

uphold the principles of constitutional policing. See U.S. Commission on Civil Rights, “U.S. Commission on Civil 

Rights Urges Department of Justice to Use All Available Tools to Work with Police Departments To Ensure 

Constitutional Policing,” April 24, 2017, http://www.usccr.gov/press/2017/Statement_04-24-2017-Policing.pdf; see 

also National Black Caucus of the Young Elected Officials Network, “A Joint Open Letter to End Police Violence 

Against Black Communities,” April 5, 2018, http://yeonetwork.org/a-joint-open-letter-to-end-police-violenceagainst-black-communities/. 
90 Police Use of Force 

reform efforts is “pitting civil rights and crime-fighting against each other. That’s to the detriment 

of police-community relations today.”542

On the other hand, critics argue that: 

[C]onsent decrees have become political statements on law enforcement policy that 

have robbed high-crime areas of the proactive policing they deserve and pay 

for . . . [and] have placed a wedge between the DOJ and local law enforcement; 

who should be partners instead of adversaries in protecting the American public.543 

Further, these agreements can also be lengthy and extremely costly. Bloomberg Business reports544

that the New Orleans Police Department consent decree has cost more than $10 million (entered 

into in 2012);545 Seattle, Washington, at least $5 million (entered in 2012);546 and Albuquerque, 

New Mexico, $4.5 million (entered into 2015).547 And in Los Angeles, the reforms have cost the 

taxpayers an estimated $300 million548 (entered into 2001).549 Therefore, the big question 

regarding this intervention is: does it work? 

The Deputy federal monitor for the New Orleans Police Department consent decree, David L. 

Douglass argues that while “Consent decrees are costly, ad hoc, and necessarily limited responses 

to a historically rooted and widespread problem, one that has become more prominent, divisive, 

and volatile . . .” taken collectively they “constitute a compendium of best practices for 

constitutional, effective, community-oriented policing.” He further posits that these agreements 

can empower communities and strengthen community-police relationships by enforcing the 

elements of constitutional and effective policing and providing a foundation for reform.550

 

542 Arthur, “Jeff Sessions is walking away from the best way to reduce police shootings,” supra note 537. 

543 A. Benjamin Mannes, “Jeff Sessions is right to roll back Justice Department consent decrees,” The Hill, April 5, 

2017, http://thehill.com/blogs/pundits-blog/crime/327457-jeff-sessions-is-right-to-roll-back-justice-departmentconsent. 

544 Matt Stroud and Mira Rojanasakul, “A ‘Pattern or Practice’ of Violence in America,” Bloomberg, May 27, 2015, 

http://www.bloomberg.com/graphics/2015-doj-and-police-violence/. 

545 Consent Decree, United States v. New Orleans, Case No. 2:12-CV-01924-SM-JCW (E.D. La. Jan. 11, 2013). 

546 Settlement Agreement and Stipulated [Proposed] Order of Resolution, United States v. Seattle, Case No. 12-CV1282 (W.D. Wash. July 27, 2012), https://www.justice.gov/sites/default/files/usaowdwa/legacy/2012/07/27/SPD%20Settlement%20Agreement.pdf. 

547 Settlement Agreement, United States v. Albuquerque, Case No. 1:14-CV-1025-RB-SMV (D.N.M June 2, 2015). 

548 Kimbriell Kelly, Sarah Childress, and Steven Rich, “Forced Reforms, Mixed Results,” Washington Post, Nov. 

13, 2015, http://www.washingtonpost.com/sf/investigative/2015/11/13/forced-reforms-mixedresults/?utm_term=.518428c25f62. 

549 Consent Decree, Unites States v. Los Angeles, Case No. 2:00-CV-11769-GAF-RC (C.D. Cal. June 15, 2001). 

550 David Douglass, “Department of Justice Consent Decrees as the Foundation for Community-Initiated 

Collaborative Police Reform,” Police Quarterly, vol. 20, no. 3 (2017). For instance, the consent decree with Los 

Angeles, included several components that aligned with the goals of community-oriented policing. This includes: 

program development for response to persons with mental illnesses, training, community outreach and more public 

transparency of information. The consent decree also included extensive data-gathering and analytics, to measure 
 Police Oversight and Accountability 91 

 

In 2010, the Justice Department convened a roundtable of law enforcement officials, policing 

experts, and advocates to discuss the efficacy of the Civil Rights Division’s “pattern-orpractice”551 work. The report from that meeting noted that: 

Without exception, everyone providing comments during the roundtable meeting 

acknowledged the efficacy of pattern-or-practice litigation to reforming policies 

and practices in local police organizations.552 

In 2013, PERF issued a comprehensive review of the Justice Department’s role in monitoring law 

enforcement noting that: 

[M]any police chiefs who have been through the process of a DOJ 

investigation. . . [stated] that the end result was a better police department—

with improved policies on critical issues such as use of force, better training of 

officers, and more advanced information systems that help police executives to 

know what is going on in the department and manage their employees.553 

The roundtable review also found that in several places, reform agreements provided essential 

leverage for the funding and political support needed for reform.554 For instance, a spokesperson 

for Chicago Mayor Rahm Emanuel welcomed the Justice Department’s involvement to “restore 

trust” in the Chicago Police Department and to improve the city’s “system of police 

accountability.”555 Christy Lopez, Distinguished Visitor from Practice at Georgetown Law, found 

that consent decrees brought about “more effective accountability infrastructure, better training, 

policies that reflect policing best practices . . . [and] repairing police-community fissures.556 

 

compliance on an ongoing basis. See e.g., Consent Decree, Unites States v. Los Angeles, No. 2:00-CV-11769-GAFRC (C.D. Cal. June 15, 2001); U.S. Dep’t of Justice, “LA Consent Decree, Section II,” 

https://www.justice.gov/crt/la-consent-decree-section-ii (last accessed Nov. 1, 2018). 

551 See U.S. Dep’t of Justice, Civil Rights Division, Special Litigation Section, “Conduct of Law Enforcement 

Agencies” (describing “pattern or practice” jurisdiction), https://www.justice.gov/crt/conduct-law-enforcementagencies (last accessed Nov. 1, 2018); Floyd, 959 F. Supp. 2d 540. 

552 U.S. Dep’t of Justice, Taking Stock: Report from the 2010 Roundtable on the State and Local Law Enforcement 

Police Pattern or Practice Program, 2011, https://www.ncjrs.gov/pdffiles1/nij/234458.pdf at 2. 

553 Police Executive Research Forum, Civil Rights Investigations of Local Police: Lessons Learned, Critical Issues 

in Policing Series, at 37, 2013, 

http://www.policeforum.org/assets/docs/Critical_Issues_Series/civil%20rights%20investigations%20of%20local%2

0police%20-%20lessons%20learned%202013.pdf. 

554 Ibid. 

555 Sari Horwitz, Ellen Nakashima, and Wesley Lowery, “Justice Department Will Investigate Practices of Chicago 

Police,” Washington Post, Dec. 6, 2015, https://www.washingtonpost.com/news/post-nation/wp/2015/12/06/justicedepartment-will-launch-investigation-into-practices-of-chicago-police/?utm_term=.8b9429fa5547. 

556 Christy Lopez, “Why Jeff Sessions Should Police the Police,” Marshall Project, Jan. 30, 2017, 

https://www.themarshallproject.org/2017/01/30/why-jeff-sessions-should-police-the-police?ref=collections. 
92 Police Use of Force 

There have been several police departments that have experienced positive changes through 

consent decrees with the Justice Department. Former Obama Department of Justice Acting 

Assistant Attorney General (AAG) Vanita Gupta cites East Haven, Connecticut, Los Angeles, 

California, and Seattle, Washington as having successful transformations.557 She states that these 

transformations are “more than just [an] enactment of specific reforms. It really is a fundamental 

change in how the community relates to the police department and vice versa.”558 

For instance, East Haven police department rewrote and revised 95 policies, since the inception of 

their consent decree.559 Officers received training on various topics focusing on community 

policing and rebuilding community trust.560 The mayor stated that the department 

met and exceeded each and every benchmark for success specified in our agreement 

with the Department of Justice both on-time and under budget. After four years of 

hard work by our officers and the entire compliance team, we have restored pride, 

trust, and confidence in our Police Department.561 

And in Los Angeles, researchers found a marked decrease in crime rates and an increase in officer 

morale.562 Under the consent decree, the total number of use of force incidents declined by almost 

30 percent.563 According to a Harvard research study, Stone and colleagues attribute some of this 

success to the police chief actively discouraging officers in the use of force and instituting stronger 

oversight procedures to increase accountability.564 Lethal and non-lethal force incidents have also 

declined, with “fewer officer-involved shootings, chokeholds, head strikes, and suspect 

hospitalizations than at any point in the previous decade.”565 Some attribute these successes to 

emphasizing accountability and oversight procedures, more engagement with communities of 

color, and building a relationship “around empathy, not antagonism.”566 Examining four agencies 

 

557 See Kelly, et al., “Forced Reforms, Mixed Results,” supra note 548 (quoting former head of Civil Rights 

Division Vanita Gupta). 

558 Ibid. 

559 Brian McCready, “East Haven Police Department Continues to Win Back Public’s Trust: Report,” East Haven 

Patch, May 12, 2016, https://patch.com/connecticut/easthaven/east-haven-police-department-continues-win-backpublics-trust-report. 

560 Ibid. 

561 Jamie Wilkins, “Maturo Praises Police Department 4 Years After Department of Justice Agreement,” East Haven 

Patch, Dec. 26, 2016, https://patch.com/connecticut/easthaven/maturo-praises-police-department-4-years-afterdepartment-justice-agreement. 

562 Christopher Stone, Todd Foglesong, and Christine Cole, Policing Los Angeles Under a Consent Decree: The 

Dynamics of Change at the LAPD, Criminal Justice Policy and Management, Harvard Kennedy School, at 6, 2009, 

http://assets.lapdonline.org/assets/pdf/Harvard-LAPD%20Study.pdf. 

563 Ibid. at 33. 

564 Ibid. at 65. 

565 Jamelle Bouie, “Cop Drama,” Slate, Jan. 8, 2015, 

http://www.slate.com/articles/news_and_politics/politics/2015/01/police_departments_shouldn_t_fear_reform_it_m

akes_their_jobs_easier_and.html. 

566 Ibid. 
 Police Oversight and Accountability 93 

with consent decrees, the Washington Post reporters found that the police departments had 

modernized their policies (e.g., emphasis on de-escalation, non-lethal force) and equipment (e.g., 

body-worn cameras, tasers), and overall, had better training.567 

However, in 5 of the 10 departments that supplied sufficient data, use of force incidents increased 

during and after the agreements with the Justice Department. The other five either remained 

constant or decreased. The Washington Post investigation also found that none of the police 

departments completed reforms on time.568 The interventions took longer than expected, which 

translated to more money for taxpayers. In the 13 departments with available budget data, costs 

are expected to surpass $600 million.569 Several of the reforms have been difficult to sustain after 

federal oversight completed, and in some cities, relationships with the community are still 

strained.570 Many departments experienced decreased officer morale and collectively, departments 

went through 52 police chiefs trying to meet federal guidelines.571 In response, former Acting AAG 

Gupta stated that the Justice Department’s goal “isn’t that we have a perfect police department 

when we leave . . . The goal is that they actually know what to do when there’s a problem.”572

One issue with consent decrees is that federal officials may not establish adequate measures to 

monitor whether police departments have corrected the behaviors that initially landed them in 

court.573 In other cases, federal officials stated that the department “did not sufficiently monitor or 

enforce the reforms they had sought.”574 Furthermore, another concern is that once the federal 

oversight ends, so does the Justice Department’s involvement.575 Thus, it is hard to determine if 

these interventions are bringing about sustained reforms. For example, in 1997, the Pittsburgh 

Police Department became the first department to enter into a decree with the Justice 

Department.576 By 2002, the police department had made many changes, but the federal court 

continued the decree for another three years, to help continue reform measures. During this period, 

by the end of the decree in 2005, the Pittsburgh Police Department had a record of using force 

1,900 times, which had increased to 2,727 (nearly 44 percent) in 2013, though complaints of 

excessive force have declined from 126 in 2006 to 48 in 2014.577 Police reform advocates argue 

the decrease in complaints could be the result of residents losing confidence that filing a complaint 

 

567 Kelly, et al., “Forced Reforms, Mixed Results,” supra note 548. 

568 Ibid. 

569 Ibid. 

570 Ibid. 

571 Ibid. 

572 Ibid. 

573 Simone Weichselbaum, “The Problems With Policing the Police,” Time and Marshall Project, 

http://time.com/police-shootings-justice-department-civil-rights-investigations/. 

574 Ibid. 

575 Ibid. 

576 U.S. Dep’t of Justice, An Interactive Guide to the Civil Rights Division’s Police Reforms, 2017, 

https://www.justice.gov/crt/page/file/922456/download. 

577 Kelly, et al., “Forced Reforms, Mixed Results,” supra note 548. 
94 Police Use of Force 

would resolve issues with police.578 Witold “Vic” Walczak, legal director of the Pennsylvania 

ACLU, also noted that there had been “a good amount of backsliding” and the progress that has 

been made was uneven due to the turnover in the chief’s office, as well as the major violent 

incidents in the city.579 Cameron McLay, the current police chief, similarly stated that the increase 

in problematic use of force was due to a “breakdown in the systems of accountability.”580 

Some cities and state attorneys general have taken an active role to implement reform policies 

without the aid of the federal government or the binding agreement of a consent decree. One 

possible reason may be due to the current administration’s rollback of federal oversight, thus some 

state and local jurisdictions are attempting to find ways to achieve federal oversight. For instance, 

in August 2017, after the DOJ declined to proceed with seeking court oversight following its 

investigation of the Chicago Police Department, Illinois Attorney General Lisa Madigan filed a 

federal lawsuit for court oversight of the department.581 Madigan stated: “As the state attorney 

general, we are essentially stepping into the shoes of the Department of Justice—shoes that the 

DOJ has abandoned at this point.”582 Similarly, in Baltimore, the Mayor and the Police 

Commissioner sought federal court oversight to approve their consent decree with the Justice 

Department—this was after Attorney General Sessions sought a delay in formalizing the 

agreement, despite that it had already been negotiated under the Obama Administration.583 Other 

cities are initiating their own actions to try reforming local police departments. For example, in 

June 2017, Providence Rhode Island’s city council approved several police accountability 

measures that reform advocates claim could be a “national model to prevent discriminatory 

profiling based on race, gender identity, and immigration status.”584 The city council stated that 

the ordinance aims to “end racial profiling and codify into law best practices in police conduct 

from around the country.”585 Some of the accountability measures the city council plans to instate 

include: 

 Prohibiting racial and other forms of discriminatory profiling; 

 Mandating greater transparency and accountability in police-community relations; 

 

578 American Civil Liberties Union, “Fighting Police Abuse: A Community Action Manual, August 1997,” 

https://www.aclu.org/other/fighting-police-abuse-community-action-manual#credits (last accessed Nov. 1, 2018). 

579 Kelly, et al., “Forced Reforms, Mixed Results,” supra note 548. 

580 Ibid. 

581 Complaint, State of Illinois v. City of Chicago, Case No. 17-CV-6260 (N.D. Ill. Aug. 29, 2017), 

http://chicagopoliceconsentdecree.org/wp-content/uploads/2018/01/City_of_Chicago_lawsuit_filedcomplaint.pdf; 

Aamer Madhani and Kevin Johnson, “Illinois attorney general in end run around Trump sues for court oversight of 

Chicago PD,” USA Today, Aug. 29, 2017, https://www.usatoday.com/story/news/2017/08/29/illinois-attorneygeneral-end-run-around-trump-sues-court-oversight-chicago-pd/613043001/. 

582 Ibid. 

583 Kevin Rector, “Federal judge approves Baltimore policing consent decree, denying Justice Department request 

for delay,” Baltimore Sun, April 7, 2017, http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ciconsent-decree-approved-20170407-story.html. 

584 Associated Press, “Police anti-profiling measure OK’d, viewed as national model,” AP, June 2, 2017, 

https://www.apnews.com/3abc7604374f4c878d3bc02bc5614223. 

585 Ibid. 
 Police Oversight and Accountability 95 

 Establishing new protections for juveniles, immigrants, and transgender people; 

and 

 Establishing how police officers will document and collect data from traffic and 

pedestrian stops.586

In sum, this chapter examined data, studies and testimony regarding various internal and external 

accountability tools designed to improve problematic and potentially unconstitutional police 

practices when they occur. The first section examined internal measures and explored some of the 

challenges for police officers who seek to hold their fellow officers accountable. It also examined 

emerging data on body cameras. The next section of this chapter examined various external 

accountability measures. These are: (1) Civilian Review Boards; (2) Grand Jury reform; (3) 

reforms to the qualified immunity of individual officers; and (4) DOJ consent decrees. All of these 

internal and external measures are imperfect, but data show that some are promising. To clarify, 

the measures may be taken alone or in combination, and whether they are more effective in 

combination is subject to further study. 

 

 

586 Ibid. 
96 Police Use of Force 

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Changing Law Enforcement Behavior 97 

CHAPTER 3: CHANGING LAW ENFORCEMENT BEHAVIOR 

In addition to reviewing data about and analyzing perspectives regarding civil rights implications 

of police use of force, as well as major types of internal and external measures to address 

potentially problematic and unconstitutional policing, the Commission heard testimony and 

analyzed research related to comprehensive strategies for effective reform. As discussed in 

Chapters One and Two, all such strategies begin with effective data collection and analysis, and 

the discussion that follows operates from that premise as well. Advocates from all perspectives on 

the issue of police use of force recommend effective training (with some disagreement about areas 

for focus for that training) as well as deliberate steps to foster and sustain community trust in their 

police. This strategy is generally known as “community policing,” and its main components 

include community outreach as well as various forms of training and building community trust. 

The holistic approach of community policing is first explained, then its main components are each 

discussed in turn below. 

A Holistic Approach to Reforming the Overall Policing System 

The Justice Department has historically advocated for community policing as a best practice.587

The DOJ Community Oriented Policy Services (COPS) defines community policing as an 

organizational strategy that supports the systematic use of partnerships and problem-solving 

techniques to address public safety issues such as crime, social disorder, and fear of crime.588 

According to COPS, effective community policing initiatives consist of three critical components: 

 

 Community partnerships that include collaborative relationships between law 

enforcement agencies and the public in order to develop better solutions to 

problems and increase public trust in police; 

 Organizational transformations that provide the alignment of management, 

structure, personnel, and information systems to support community partnerships 

and problem-solving techniques; and 

 Problem-solving strategies which pertain to a process of active examination of 

identified problems in order to develop and evaluate effective responses.589 

In this light, at the briefing, panelists Scrivner and Simmons offered a broad perspective on police 

reform in the country. They applauded the policing reforms currently underway, but questioned 

whether meaningful results in police practices and use of force could occur within the status quo.590

They suggested overhauling the policing system in the country in its entirety.591 Ellen Scrivner 

 

587 U.S. Dep’t of Justice, Community Policing Defined, at 1-2, 2014, https://ric-zai-inc.com/Publications/cops-p157-

pub.pdf. 

588 Ibid. at 1. 

589 Ibid. 

590 Briefing Transcript at 260-61. 

591 Ibid. 
98 Police Use of Force 

from the Police Foundation argued that systemic organizational change within the framework of 

21st century policing strategies are needed. She stated during the Commission’s briefing that: 

What I’ve heard here today just confirms that we really need to be focusing on 

police reform because simply changing a particular practice, such as a different 

training program, implementing a new program to respond to complaints or 

bringing on new technology, they will all have specific results, but that will not get 

us to the results that we’re seeking. The reason being [that] we are really at a very 

pivotal point in policing in terms of the relationship of the community and we need 

to be talking about the need for systemic organizational change, and I’ve not really 

heard a lot about that today in terms of changing not just different programs and 

different initiatives, but really changing organizations across the country, and of 

course, we're then talking about cultural change as well.592 

Montague Simmons from the Organization for Black Struggle, presented his organization’s 

“Quality Policing Initiative” as a means of achieving the wholesale changes needed in policing: 

The Organization for Black Struggle has designed a quality policing initiative that 

creates deep partnership between community and police on all levels, and 

specifically in equipment, training, deployment, accountability and advancement. 

At minimum we want to see residency requirements, conflict resolution and threat 

progressive training, demilitarization of all forces, including specific withdrawal 

from the police as collection agents, implementation of field contact cars that allow 

us to trace every interaction and early warning system database on police behavior, 

a media accountability system that includes body and dash cameras where the data 

is actually controlled by the civilian review board and civilian accountability 

project that has subpoena power, investigatory, and prosecution powers.593 

The following sections outline strategies proposed by experts, police officials, and community 

activists on different trainings and practices they believe are promising for addressing the 

conventional needs of the police, while building community trust and legitimacy. As a helpful 

guide for police departments, the National Institute for Justice (NIJ) created a website, 

crimesolutions.gov594 that outlines some best-practices for reform. This website rates the 

effectiveness of programs and practices in achieving criminal justice related outcomes in order to 

inform practitioners and policy makers about what works, what does not work, and what is 

promising in criminal justice, juvenile justice, and crime victim services. The NIJ states that the 

website’s goal is help policy makers make practical decisions on criminal justice programs. While 

not all the police-based trainings and practices discussed below meet the threshold of “best-

 

592 Ibid. 

593 See Briefing Transcript at 30-31; see also Montague Simmons, written statement for the “Police Use of Force: 

An Examination of Modern Policing Practices” Briefing before the U.S. Commission on Civil Rights, April 20, 

2015, at 1-2 [hereinafter Simmons Statement] (providing more details on the Organization for Black Struggle’s 

Quality Policing Initiative). 

594 National Institute of Justice, CrimeSolutions.gov, “About CrimeSolutions.gov” 

https://www.crimesolutions.gov/about.aspx (last accessed Nov. 1, 2018). 
Changing Law Enforcement Behavior 99 

practices” described on the NIJ’s website, the Commission examined them because they are the 

most widely-adopted strategies by jurisdictions across the country. Others were included in the 

Commission’s review because they are among the most thoughtful, innovative approaches for 

building community trust and reducing police use of force. In the following sections, first, 

increasing racial and ethnic diversity among law enforcement is considered as a community 

policing tool. Next, a discussion of various types of training are examined and evaluated. Lastly, 

the Commission presents strategies to strengthen and build community trust. 

Racial Diversity 

One of the main proposed strategies to possibly reduce excessive force incidents and build 

community trust is to hire more diverse police forces. Research shows that 70 percent of the 

American public wants a department that is diverse, racially-mixed, and resembles the community 

it serves.595 Ronald Weitzer, professor at George Washington University, stated that: 

Ethnic minorities favor reforming police departments so that they reflect the 

composition of the local population. And this can pay dividends in terms of 

increasing public trust and confidence in police departments. What the public is 

critical of are departments that are lopsided—like Ferguson’s.596 

Communities are also more likely to see a diverse force as more legitimate, and communities are 

more likely to take “ownership” of local police departments when they perceive their police 

departments to be racially diverse.597 According to the DOJ’s Bureau of Justice Statistics 2013 

survey of over 12,000 law enforcement agencies, agencies have been successful in recruiting more 

racially diverse officers. In the past three decades, the percentage of officers of color grew from 

14.6 percent in 1987 to 27.3 percent in 2013.598 Notably, only about 13 percent of local police 

officers were women.599

Research findings are mixed regarding whether increasing racial diversity actually decreases use 

of force incidents. For instance, Baltimore’s police force is fairly diverse—approximately 42 

percent black, compared to 63 percent of the general population—but the Justice Department 

 

595 Weitzer found that when asked about the diversity of their local police force, people of color more often take a 

“race-conscious approach” (59 percent of Latinos and 68 percent of black respondents) stating that they want 

officers of diverse races in their communities. Whereas, 6 out of 10 white respondents were more likely to take a 

“colorblind approach” stating that the race of the officer does not matter. See Ronald Weitzer and Steven A. 

Tuch, Race and Policing in America: Conflict and Reform (New York: Cambridge University Press, 2006) at 112. 

596 Matt Fountain, “How important is racial diversity in community policing?” Tribune, April 18, 2015, 

https://www.sanluisobispo.com/news/local/article39524391.html. 

597 Ronald Weitzer, “White, black, or blue cops? Race and citizen assessments of police officers,” Journal of 

Criminal Justice, vol. 28, no. 4 (2000), at 313-24. 

598 Reaves, Local Police Departments, 2013: Personnel, Policies, and Practices, supra note 68. 

599 Data USA, “Police Officers,” https://datausa.io/profile/soc/333050/#demographics (last accessed Nov. 1, 2018). 
100 Police Use of Force 

found a long history of unfair policing practices against black residents in the city.600 Some 

advocates posit that a problem with focusing on diversifying forces is that it focuses attention on 

individual officers, rather than directing attention to the structural and cultural issues that need to 

be addressed.601 

Studies show that generally there is not a strong correlation between an officer’s race or ethnicity 

and how the officer treats civilians.602 This absence of correlation is because an officer’s behaviors, 

interactions, and opinions about the communities they serve are influenced by the other officers 

and the culture of the department.603 Many studies support the idea that socialization plays a critical 

role.604 Overall, when researchers compare officers’ behaviors within departments, they 

consistently find behavior does not vary with the officer’s racial or ethnic background.605 Some 

argue that other strategies, such as hiring officers who know and understand the community, 

focusing on de-escalation and reducing aggressive arrest techniques, and building better 

relationships with the communities they serve would be more effective in reducing use of 

excessive force and improving community relations.606 Others assert that in majority black or 

Latino cities, there are benefits if the leadership (e.g., chief of police) comes from the community, 

because they can help “allay suspicions when controversial incidents occur in a way that white 

police chiefs may not be able to do.”607 Further, George Washington University professors, Ronald 

Weitzer and Steven Tuch found that having a racially diverse police force may help reduce 

discriminatory stops by officers.608 

 

600 U.S. Dep’t of Justice, Civil Rights Division, Investigation of the Baltimore City Police Department, 2016, at 11, 

16, https://www.justice.gov/crt/file/883296/download. 

601 Max Kutner, “The New American Cop: Smarter, More Diverse, Better Equipped and Scared,” Newsweek, Aug. 

11, 2016, https://www.newsweek.com/2016/08/19/police-officers-training-black-lives-matter-489228.html; Jen 

Fifield, Pew Charitable Trusts, “Does Diversifying Police Forces Reduce Tensions?” Stateline, Aug. 22, 2016, 

http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2016/08/22/does-diversifying-police-forcesreduce-tensions. 

602 National Research Council, Fairness and Effectiveness in Policing: The Evidence (Washington, D.C.: National 

Academies Press, 2004) at 148. 

603 Ibid. 

604 Seth Stoughton, “How Police Training Contributes to Avoidable Deaths: To save lives, cops must be taught to 

think beyond the gun belt,” The Atlantic, Dec. 12, 2014, 

http://www.theatlantic.com/national/archive/2014/12/police-gun-shooting-training-ferguson/383681/; Tom Dart, 

“‘Verbal Judo’: the police tactic that teaches cops to talk before they shoot,” Guardian, July 21, 2016, 

https://www.theguardian.com/us-news/2016/jul/21/verbal-judo-police-shootings-deescalation-communication; 

Benedict Carey and Erica Goode, “Police Try to Lower Racial Bias, but Under Pressure, It Isn’t So Easy,” New York 

Times, July 12, 2016, https://www.nytimes.com/2016/07/12/science/bias-reduction-programs.html?_r=0. 

605 Ibid.; Ronald Weitzer, “Diversity among police officers is key, but it won’t solve the problems with policing,” 

Guardian, Jan. 20, 2015, https://www.theguardian.com/commentisfree/2015/jan/20/diversity-among-police-officersis-key-but-it-wont-solve-the-problems-with-policing. 

606 Jen Fifield, Pew Charitable Trusts, “Does Diversifying Police Forces Reduce Tensions?,” supra note 601. 

607 Weitzer, “Diversity among police officers is key, but it won’t solve the problems with policing,” supra note 605. 

608 Weitzer and Tuch, Race and Policing in America: Conflict and Reform, supra note 595 at 141. Additionally, 

Sounman Hong, associate professor at Yonsei University, studied 42 police forces in the UK from 2000 to 2010 and 

found that “an increase in the proportion of ethnic minorities on a police force is significantly associated with a 
Changing Law Enforcement Behavior 101 

Training 

Many contend that the growing pattern of police-involved killings of people of color is due to 

improperly trained officers. Some argue that police officers receive training that both 

underemphasizes de-escalation techniques and overemphasizes officer safety and technical skill 

development, such as firearms training.609 Another common argument is that some of the training 

overestimates the danger of interacting with black suspects relative to other groups.610 

At the Commission’s briefing, University of Missouri Professor David Klinger argued that many 

states do not require a satisfactory number of hours in fundamental (e.g., scenario-based, on the 

ground) tactical training.611 He argued that departments should implement training policies that 

have explicit standards for oversight throughout the entire chain of command, to help build a 

culture of accountability. Part of this process would include implementing a non-punitive strategy 

for reviewing use of force incidents or a “near miss” incident, in order to determine what methods 

could be improved or modified in hope of keeping civilians and officers safe.612 Klinger offered 

this example: if there was a call that a suspect had a gun, the commanding officer would debrief 

the officers immediately following the incident to make sure the officers who responded to the call 

acted appropriately. If they did not, then the commanding officer could tell them what they did 

wrong (e.g., “you pulled up a bit too close, you engaged this individual too quickly”).613 This 

would enforce what behaviors are appropriate and that inappropriate behaviors would not be 

tolerated; and these actions would begin to change the culture of policing. Klinger states: “[w]hat 

we’re going to do is, we’re gonna teach you how to do it right and we’re gonna hold you 

accountable, [ ] up and down the chain [of command].”614 Further, Jon Shane, assistant professor 

at John Jay College of Criminal Justice, stated at the Commission’s briefing that the Police 

 

decrease in the proportion of ethnic minorities that are stopped and searched by that police force.” It is important to 

note that this study was after the U.K. government launched a program in 1999 that sought to increase the diversity 

of police forces around the country. Specifically, the goal was for each department to have a proportional number of 

officers of color, compared to the populations of the community it served. Sounman Hong, “Black in Blue: Racial 

Profiling and Representative Bureaucracy in Policing Revisited,” Journal of Public Administration Research and 

Theory, vol. 27, no. 4 (2017) at 547-61. 

609 David Klinger argued that officer safety is important given the number of officers assaulted in a given year. 

Klinger cited FBI statistics that reveal during the decade ending in 2013, 474 police officers were murdered by 

assailants who shot them (a total of 511 officers were murdered during this decade). And while fatal attacks with 

firearms are the most dramatic aspect of the threat environment that officers face, it should be noted that for the 

years 2004-2013 local and state police departments reported to the FBI well over half a million (573,456) instances 

in which officers were assaulted. See David Klinger, written statement for the “Police Use of Force: An Examination 

of Modern Policing Practices” Briefing before the U.S. Commission on Civil Rights, April 20, 2015, at 1 

[hereinafter Klinger Statement]. 

610 Stoughton, “How Police Training Contributes to Avoidable Deaths: To save lives, cops must be taught to think 

beyond the gun belt,” supra note 604; see also, Sarah Zhang, “Police Training Is Seriously Lacking In Actual 

Science,” Wired, Aug. 17, 2015, http://www.wired.com/2015/08/police-training-seriously-lacking-actual-science/. 

611 Klinger, Briefing Transcript at 334. 

612 Ibid.; see also Shane, Briefing Transcript at 337. 

613 Ibid. at 334-35. 

614 Ibid. 
102 Police Use of Force 

Foundation was piloting a system that would allow officers to anonymously report “near-miss 

accidents” to gain a better understanding of how these accidental events can change over time and 

the effects they have on the communities in which they occur.615 Since the briefing in 2015, the 

system—LEO Near Miss—has launched, and the program allows law enforcement to read about 

and anonymously share “close calls” or “near misses” with other officers in hope of promoting 

learning and enhancing officer safety and wellness.616 The system not only allows officers to read 

the “lessons learned” from other officers, but it also helps identify and report on possible 

underlying risk factors and other characteristics that contribute to near-miss incidents.617

Police training was one of many issues discussed during President Obama’s White House Task 

Force on 21st Century Policing.618 These national experts examined ways to restore the principles 

of constitutional policing 619 that simultaneously promoted effective crime reduction strategies 

while optimizing transparency and accountability.620 Specifically, they discussed best practices 

related to training and education, officer safety and wellness, community policing, technology and 

social media, policy and oversight, and building trust and legitimacy.621 

Considering the prominence of training as a proposed measure to guarantee constitutional policing, 

the following sections examine the major types of training. These are: (a) implicit bias training; 

(b) de-escalation training; and (c) training on mental health and disability issues. 

 

615 Shane, Briefing Transcript at 336-37. 

616 National Police Foundation, “LEO Near Miss,” https://www.policefoundation.org/projects/leo-near-miss/ (last 

accessed Nov. 1, 2018). 

617 Ibid. 

618 The President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century 

Policing, supra note 9 at 51-60. 

619 Constitutional policing can also be described as “legal policing,” meaning that policing must be conducted in 

“accordance with the parameters set by the U.S. Constitution, state constitutions, and the many court decisions that 

have defined in greater detail what the text of the Constitution means in terms of the everyday practices of policing.” 

Police Executive Research Forum, Constitutional Policing as a Cornerstone of Community Policing, supra note 

111. 

620 The President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century 

Policing, supra note 9; see also Klinger Statement at 1-2 (testifying in support of this notion). Klinger states that 

officer safety does not have to be a zero-sum game in which enhancing officer safety means exposing citizens to 

elevated risk of police gunfire. Moreover, he argues that officer safety and reducing the use of deadly force by police 

officers are actually two sides of the same police practice coin. Thus, Klinger concludes by stating that there are 

specific things that police officers, police agencies, and American policing in general can do that can enhance officer 

safety while actually reducing the likelihood that citizens will be shot by police. 

621 The President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century 

Policing, supra note 9. 
Changing Law Enforcement Behavior 103 

Implicit Bias Training 

Implicit bias refers to the automatic association people make between groups of people, and the 

stereotypes associated with those groups.622 These biases may distort police officers’ perceptions, 

judgments, and decision making regarding encounters with civilians.623 For instance, former FBI 

Director James Comey stated that: 

[P]olice officers on patrol in our nation’s cities often work in environments where 

a hugely disproportionate percentage of street crime is committed by young men of 

color. Something happens to people of good will working in that environment. 

After years of police work, officers often can’t help but be influenced by the 

cynicism they feel. A mental shortcut becomes almost irresistible and maybe even 

rational by some lights. The two young black men on one side of the street look 

like so many others the officer has locked up. Two white men on the other side of 

the street—even in the same clothes—do not. The officer does not make the same 

association about the two white guys, whether that officer is white or black. And 

that drives different behavior. The officer turns toward one side of the street and 

not the other. We need to come to grips with the fact that this behavior complicates 

the relationship between police and the communities they serve.624

Studies show that law enforcement officers hold many of the same biases as the general public, 

and in implicit bias tests, patterns are nearly universal. Black people (especially black men) are 

more often associated or quickly paired with being “threatening,” and this tends to hold true 

regardless of the race or ethnicity of the person taking the test.625 For instance, Plant and Peruche 

found that by utilizing “shoot-don’t shoot” simulations, officers were initially more likely to 

mistakenly shoot unarmed black suspects compared to unarmed white suspects.626 However, Plant 

and Peruche also found that after repeated exposure with the program and extensive training—in 

which race was unrelated to the presence of a gun—this bias could be eliminated.627 

In another study, researchers found that respondents perceived young black men as “bigger” (i.e., 

more muscular, heavier, taller) and “more physically threatening” (i.e., stronger, more capable of 

 

622 National Initiative for Building Community Trust & Justice, Implicit Bias, Trust & Justice Briefs, at 1, 2016, 

https://trustandjustice.org/resources/intervention/implicit-bias. 

623 See e.g., Joshua Correl, Bernadette Park, Charles Judd, Bernd Wittenbrink, Melody Sadler, and Tracie Keessee, 

“Across the Thin Blue Line: Police Officers and Racial Bias in the Decision to Shoot,” Journal of Personality and 

Social Psychology, vol. 92, no. 6 (2007); Jennifer Eberhardt, Philip Atiba Goff, Valerie Purdie, and Paul Davies, 

“Seeing Black: Race, Crime, and Visual Processing. Seeing Black: Race, Crime, and Visual Processing,” Journal of 

Personality and Social Psychology, vol. 87, no. 6 (2004). 

624 James B. Comey, “Hard Truths: Law Enforcement and Race” (speech delivered at Georgetown University, 

Washington, D.C., Feb. 12, 2015), https://www.fbi.gov/news/speeches/hard-truths-law-enforcement-and-race. 

625 Carey and Goode, “Police Try to Lower Racial Bias, but Under Pressure, It Isn’t So Easy,” supra note 604. 

626 E. Ashby Plant and B. Michelle Peruche, “The Consequences of Race for Police Officers’ Responses to Criminal 

Suspects,” Psychology Science, vol. 16, no. 3 (2005). 

627 Ibid. 
104 Police Use of Force 

harm) than young white men of the same size and weight; and thus, must be controlled using more 

aggressive measures.628 Other research suggests that black children, specifically, black boys, are 

perceived as older, less innocent, and therefore more responsible for their actions than their sameage, white peers. This research suggests that these biases lead to actual racial disparities in police 

violence towards children.629 Researchers have found similar results in the “adultification”630 of 

black girls as well. In a study by the Georgetown Law Center on Poverty and Inequality, 

researchers found that black girls are consistently viewed as “less innocent” and more “adult-like” 

than their similarly aged white female peers.631 This perception can then contribute to “more 

punitive exercise of discretion by those in positions of authority, greater use of force, and harsher 

penalties.”632 For instance, in Texas, video footage was released showing an officer kneeling on 

top of a 15-year-old black girl, pinning her to the ground.633 Many critical of the officer’s actions 

argue that this was an example of an officer choosing to apply more force than was potentially 

necessary due to the “adultification” of black girls.634 Zeba Bay wrote that the officer “did not 

think he was restraining a helpless teenaged girl, but a ‘black woman,’ with all the stereotypes and 

stigma that includes. This, it seems, was justification enough for her treatment.”635 

Research shows that prejudice and discrimination are not necessarily due to holding explicit or 

overt racist views or racial animus. Rather, due to the historical legacy of racism, these ideas have 

become embedded in our institutions and society, and these ingrained ideas are practiced 

unconsciously in our minds and may be acted upon without malice. Eduardo Bonilla-Silva argues 

that this type of “color-blindness” emerged as the majority of the public began stigmatizing open 

and overt racism; and while racism may not be as explicit as it once was, prejudice and 

 

628 John Wilson, Kurt Hugenberg, Nicholas Rule, “Racial bias in judgements of physical size and formidability: 

From size to threat,” Journal of Personality and Social Psychology, vol. 113, no. 1 (2017). 

629 Phillip Atiba Goff, Matthew Jackson, Brook Lewis, Di Leone, Carmen Culotta, and Natalie DiTomasso, “The 

Essence of Innocence: Consequences of Dehumanizing Black Children,” Journal of Personality and Social 

Psychology, vol. 106, no. 4 (2014). 

630 The term adultification refers to the “perception of black girls as less innocent and more adult-like than white 

girls of the same age–as well as its possible causal connection with negative outcomes across a diverse range of 

public systems, including education, juvenile justice, and child welfare.” See Rebecca Epstein, Jamilia Blake, and 

Thalia Gonzalez, Girlhood Interrupted: The Erasure of Black Girls’ Childhood, Center on Poverty and Inequality, 

Georgetown Law, 2012, at 1, http://www.law.georgetown.edu/academics/centers-institutes/povertyinequality/upload/girlhood-interrupted.pdf. 

631 Ibid. at 1-2. 

632 Ibid. at 1. 

633 Kristine Phillips, “Black teen who was slammed to the ground by a white cop at Texas pool party sues for $5 

million,” Washington Post, Jan. 5, 2017, https://www.washingtonpost.com/news/post-nation/wp/2017/01/05/blackteenager-who-was-slammed-to-the-ground-at-texas-pool-party-sues-ex-cop-city-for-5m/?utm_term=.8f0c9cbab905. 

634 Ibid.; Zeba Blay, “For Black Women, Police Brutality and Sexual Harassment Go Hand in Hand,” Huffington 

Post, June 8, 2015, https://www.huffingtonpost.com/2015/06/08/black-women-policebrutality_n_7536896.html?ncid=fcbklnkushpmg00000047. 

635 Ibid. 
Changing Law Enforcement Behavior 105 

discrimination still exist in U.S. society.636 Daniel Ames, postdoctoral research fellow at UCLA, 

argues that these implicit biases, are in some ways more dangerous, because they are harder to 

identify, and thus harder to rectify.637

Research indicates that these biases can cause individuals to perceive similar facial expressions as 

more hostile on black faces compared to white faces or to interpret identical behaviors as more 

aggressive when performed by a black individual as opposed to a white individual.638 These 

implicit biases also help to explain the unconscious tendency of some police officers to associate 

black people with criminality.639 For instance, in a study testing implicit bias with 80 officers from 

Spokane, Washington, researchers found that 96 percent of the officers demonstrated racial bias.640

As one component of their study, they utilized the Harvard Implicit Association Test that is 

designed to detect racial bias by linking pictures of black and white faces with pictures of weapons. 

Results from this test showed that 78 percent of the officers strongly to moderately associated 

black people with weapons, and remarkably, 0 percent associated white people with weapons.641

Moreover, numerous studies have found that these implicit biases can manifest themselves in 

increased stops and searches, use of force, and incarceration.642 

Discussions about implicit bias can also be met with skepticism. Many critics argue that while 

individuals may carry unconscious prejudices, trying to test or prove these biases is difficult.643

Some critics argue that officers’ actions do not reflect any internal implicit bias, and they treat all 

 

636 Eduardo Bonilla-Silva, Racism without Racists: Color-Blind Racism and the Persistence of Racial Inequality in 

America (Lanham: Rowman & Littlefield Publishers, Inc., 2009). 

637 John Blake, “The new threat: ‘Racism without racists,’” CNN, Nov. 26, 2014, 

http://www.cnn.com/2014/11/26/us/ferguson-racism-or-racial-bias/. 

638 L. Song Richardson and Phillip Atiba Goff, Interrogating Racial Violence, 12 OHIO ST. J. CRIM. L. 115, 121 

(2014). 

639 Id. 

640 Lois James, Stephen James, and Bryan Vila, “The Reverse Racism Effect: Are Cops More Hesitant to Shoot 

Black than White Suspects?” Criminology & Public Policy, vol. 15, no. 2 (2016) at 13. 

641 Ibid. at 14. It is worth noting that 96 percent of participants associated Black people with weapons. Four percent 

had little or no association between race and weapons. Conversely, as a separate component of the study, researchers 

found that participants took longer to shoot armed Black suspects than armed White suspects and were less likely to 

shoot Black suspects versus White suspects in the simulations. 

642 Lopez, “How systemic racism entangles all police officers—even black cops,” supra note 159; Joshua Correll, 

Sean Hudson, Steffanie Guillermo, Debbie Ma, “The Police Officer’s Dilemma: A Decade of Research on Racial 

Bias in the Decision to Shoot,” Social and Personality Psychology Compass, vol. 8 (2014); Jessica Sim, Joshua 

Correll, Melody Sadler, “Understanding Police and Expert Performance,” Pers Soc Psychol Bull, vol. 39 (2013) at 

291-304; Gina Castle Bell, Mark Hopson, Richard Craig, and Nicholas Robinson, “Exploring Black and White 

Accounts of 21st-Century Racial Profiling: Riding and Driving While Black,” Qualitative Research Reports in 

Communication, vol. 15, no. 1 (2014). 

643 David French, “Implicit Bias Gets an Explicit Debunking,” National Review, Jan. 10, 2017, 

https://www.nationalreview.com/2017/01/implicit-bias-debunked-study-disputes-effects-unconscious-prejudice/; 

Jesse Singal, “Psychology’s Favorite Tool for Measuring Racism Isn’t Up to the Job,” The Cut, Jan. 11, 2017, 

https://www.thecut.com/2017/01/psychologys-racism-measuring-tool-isnt-up-to-the-job.html. 
106 Police Use of Force 

civilians equally.644 While most implicit bias researchers are careful to state that these biases affect 

everyone, regardless of profession, many officers fear that they are being labeled as racists simply 

because they are being law enforcement.645 That would be unfair, but law enforcement also hold 

significant power over the fate of civilians they encounter and are thus subject to more 

constitutional limitations.646

Police alone are not the problem. Studies suggest that implicit biases may be a driving force in the 

disparities of force incidents between people of color and white civilians.647 Yet in the context of 

their public service, researchers identified concerns about implicit bias among police. For example, 

researchers found that: 

[B]lack suspects are more likely to be brutalized than white suspects despite 

engaging in identical behaviors . . . [Thus] officers are more likely to believe that 

the use of force against a black suspect is both reasonable and necessary, even if 

they would not make the same judgment with a white suspect acting identically.648 

Emily Baxter, Director of We Are All Criminals, testified at the Commission’s Minnesota State 

Advisory Committee briefing in 2017 that she views implicit bias as “one of the greatest barriers” 

in building trust and legitimacy between law enforcement and communities.649 She testified that: 

[Implicit bias] is the poison that permeates this state . . . It’s in the squad car and in 

the courtroom, it’s in the legislature and city council. It’s in the soil and in the water. 

And like carbon monoxide, it’s in the air and we’re all breathing it in. It’s what 

leads state representatives to use coded language to blame the victim, and officers 

to pull the trigger, release the dogs, or tackle or tase someone who doesn’t look like 

them, doesn’t remind them of their sons, their sisters, their elders, themselves. 

When we see someone as a threat, or as another, community relations are doomed. 

And interactions can be deadly.650

 

644 Heather Mac Donald, “Are We All Unconscious Racists?” City Journal, 2017, https://www.cityjournal.org/html/are-we-all-unconscious-racists-15487.html. 

645 Erin Healy Gallagher, John Kim, John Markovic and Deborah Spence, eds, The State of Policing in the United 

States, Volume 1 (Washington, D.C.: Office of Community Oriented Policing Services, 2016). 

646 See, e.g., U.S. CONST. amends. IV, VII, and XIV. 

647 See, e.g., Lopez, “How systemic racism entangles all police officers—even black cops,” supra note 159; Lopez, 

“Why police so often see unarmed black men as threats,” Vox, Sept. 20, 2016, 

https://www.vox.com/2014/8/28/6051971/police-implicit-bias-michael-brown-ferguson-missouri; Goff, et al., “The 

Essence of Innocence: Consequences of Dehumanizing Black Children,” supra note 629; Sim, et al., supra note 642; 

Correll, et al., “The Police Officer’s Dilemma: A Decade of Research on Racial Bias in the Decision to Shoot,” 

supra note 642.

648 Richardson and Goff, Interrogating Racial Violence, supra note 638 at 123. 

649 Emily Baxter, Director, We Are All Criminals, Minnesota Hearing Transcript at 37. 

650 Ibid. at 37-38. 
Changing Law Enforcement Behavior 107 

Due to racial biases ingrained in U.S. society, it is hard to imagine that implicit bias training can 

alleviate them in all law enforcement. Preliminary research on implicit bias training suggests that 

even after officers go through training, unless it is regularly practiced and correctly learned, biases 

may eventually resurface, especially in high stress situations.651 And, excessive use of force is 

most likely to occur in these high-stress encounters.652 Dave Wilson, professor at the University 

of Delaware, argues that implicit biases are effectively automatic and in conditions where an 

officer may be “fatigued or hungry or exhausted or highly emotional, that’s when [implicit biases] 

are more likely to come to the forefront.”653 

Other studies have suggested that instituting implicit bias training may not be effective at reducing 

actions based on biases.654 For instance, Wilson argues that: 

Training is going to have short-term effects, but without rewards or punishments in 

place, then just attending a training as a condition of employment won’t have much 

effect. Implicit biases are like bad habits. You have to be aware of the habit. You 

have to have a desire to break the habit. You have to have a deep understanding of 

when, where and why the habit occurs. You have to have a set of tools that tell you 

to stop and think before you act. You can’t train away implicit biases, they are 

implicit. They are there.655

Therefore, the goal for law enforcement officials should be focused on trying to teach officers how 

to recognize their biases and not act on them, while holding them accountable for inappropriate 

actions, if they occur. 

In June 2016, the Justice Department stated that as part of basic training, all federal law 

enforcement agents and prosecutors must go through implicit bias training to help them recognize 

 

651 Richardson and Goff, Interrogating Racial Violence, supra note 638; Elizabeth Chuck, “Can ‘Implicit Bias’ 

Training Stop Police Officers From Acting on Hidden Prejudice?” NBC News, Oct. 1, 2016, 

http://www.nbcnews.com/news/us-news/can-implicit-bias-training-stop-police-officers-acting-hidden-prejudicen656071; David Blake, “Unpacking implicit bias in policing,” PoliceOne.com, Nov. 7, 2016, 

https://www.policeone.com/patrol-issues/articles/239038006-Unpacking-implicit-bias-in-policing/. 

652 Judith Andersen, Harri Gustafsberg, “A Training Method to Improve Police Use of Force Decision Making,” 

Sage Open, 2016, http://journals.sagepub.com/doi/pdf/10.1177/2158244016638708; Judith Andersen, Marian Pitel, 

Ashini Weerasinghe, Konstantinos Papazoglou, “Highly Realistic Scenario Based Training Simulates the 

Psychophysiology of Real World Use of Force Encounters: Implications for Improved Police Officer Performance,” 

Journal of Law Enforcement, vol. 5, no. 4, 2016. 

653 Dave Wilson, Professor of Political Science and Psychology, University of Delaware, Delaware Hearing 

Transcript at 22. 

654 See e.g., Chuck, “Can ‘Implicit Bias’ Training Stop Police Officers From Acting on Hidden Prejudice?” supra 

note 651; Correll, et al., “The Police Officer’s Dilemma: A Decade of Research on Racial Bias in the Decision to 

Shoot,” supra note 642 at 201-13. 

655 Wilson, Delaware Hearing Transcript at 24. 
108 Police Use of Force 

and address the issue.656 Advocates argue that this directive is a positive step, but it does not go 

far enough. According to these advocates, there needs to be an effort to create policies and 

procedures that protect civilians from possible biases (e.g., racial, ethnic, gendered, or sexual), 

rather than trying to “de-bias” leaders, decision-makers, and law enforcement.657 

One study that has drawn a great deal of national attention is Roland Fryer’s 2016 National Bureau 

of Economic Research (NBER) working paper exploring if implicit bias could account for some 

of the racial disparities in police use of force cases.658 His study utilized four different data sets, 

but the data from the Houston police force has garnered the most attention.659 In this case, Fryer 

found no racial differences in officers’ decisions to “shoot” or “not shoot” in cases of fatal 

shootings.660 At the same time, Fryer did find significant differences in terms of non-lethal use of 

force. Black and Latino civilians were more than 50 percent more likely to experience some form 

of force (e.g., being pushed against a wall or onto the ground, being pepper sprayed or baton used, 

have a gun pointed at them) in interactions with police. Fryer found that black and Latino people 

are about 53 percent more likely to experience any police use of force compared to white people.661 

Additionally, Fryer found that even when officers report civilians followed orders, black people 

were still 21 percent more likely to endure some form of police use of force compared to white 

people exhibiting the same compliance behavior. Fryer argues that these disparities are significant, 

because the use of lethal force is much rarer in police-civilian interactions than non-lethal force.662

Thus, in analyzing the type of force that is more prevalent, there were more significant racial 

differences. Fryer also points out that since lesser forms of force are rarely tracked or punished, 

these officers are not being held accountable and these behaviors are likely to continue. He 

concludes that “black civilians always have a higher likelihood of force being used on them 

compared to white civilians.”663 While this conclusion is important, several researchers have 

offered challenges to Fryer’s main finding that claimed there was no racial bias in fatal shootings. 

 

656 U.S. Dep’t of Justice, Office of Public Affairs, “Department of Justice Announces New Department-Wide 

Implicit Bias Training for Personnel,” June 27, 2016, https://www.justice.gov/opa/pr/department-justice-announcesnew-department-wide-implicit-bias-training-personnel. 

657 Lopez, “Why police so often see unarmed black men as threats,” supra note 647; International Association of 

Chiefs of Police, U.S. Department of Justice, Office of Community Oriented Policing Services, Bridging the Trust 

Gap Between Law Enforcement and Communities of Color, 2014, http://www.theiacp.org/CommunitiesOfColor; 

James Copple and Patricia Dunn, Gender, Sexuality, and 21st Century Policing: Protecting the Rights of the 

LGBTQ+ Community, U.S. Dep’t of Justice, Office of Community Oriented Policing Services, 2017, at 11, 

https://ric-zai-inc.com/Publications/cops-w0837-pub.pdf. 

658 Roland Fryer, “An empirical analysis of racial differences in the use of force,” NBER Working Paper 22399, 

National Bureau of Economic Research, revised in 2018, http://www.nber.org/papers/w22399. 659 Ibid. The Fryer study relied upon 4 different datasets—the New York City’s Stop and Frisk program, the PolicePublic Contact Survey (PPCS), event summaries of officer-shootings in 10 U.S. cities, and data on interactions 

between civilians and police in Houston, Texas. 

660 Ibid. 

661 Ibid. 

662 Ibid. 

663 Ibid. 
Changing Law Enforcement Behavior 109 

Justin Feldman, doctoral candidate at Harvard University, analyzed the same dataset as Fryer from 

2005 to 2015 and supplemented it with census data. In contrast to Fryer’s finding that “there are 

no racial differences in officer-involved shootings,”664 Feldman found that black civilians were 

over five times as likely and Latino civilians were approximately two times as likely to be shot by 

police, compared to white people. 665 Feldman argues that these vastly different results are due to 

Fryer examining whether racial differences were the result of “racial bias” or “statistical 

discrimination.”666 And in terms of fatal police-shootings, Feldman argues that Fryer’s utilizing a 

measure of statistical discrimination was inappropriate for this type of study.667 Joshua Miller, 

assistant professor at Bocconi University in Italy, also challenged Fryer’s conclusions based on a 

potential in selection bias in the Houston data set.668 Miller argues that there was selection bias 

because there were more non-criminal black suspects in the researcher-defined “shoot or don’t 

shoot” scenario. Since most officers (correctly) did not view these non-criminal black suspects as 

more dangerous than the criminal white suspects, lethal force was unlikely to be used in those 

cases. As a result, this lowered the overall average of police shooting black suspects in the 

experiment.669

Notwithstanding these challenges to Fryer’s fatal shootings findings, his study does offer a helpful 

analysis about non-lethal use of force. He points out that there is the 

possibility that racial differences in police non-lethal force have spillovers on 

myriad dimensions of racial inequality. If, for instance, blacks use their lived 

experience with police as evidence that the world is discriminatory, then it is easy 

to understand why black youth invest less in human capital or black adults are more 

 

664 Ibid. at 4. 

665 Justin Feldman, “Roland Fryer is wrong: There is racial bias in police shootings,” July 12, 2016, 

https://scholar.harvard.edu/jfeldman/blog/roland-fryer-wrong-there-racial-bias-shootings-police. 

666 Feldman argues that this distinction is significant because “statistical discrimination occurs when an individual or 

institution treats people differently based on racial stereotypes that ‘truly’ reflect the average behavior of a racial 

group. For instance, if a city’s black drivers are 50% more likely to possess drugs than white drivers, and police 

officers are 50% more likely to pull over black drivers, economic theory would hold that this discriminatory policing 

is rational. If, however, police were to pull over black drivers at a rate that disproportionately exceeded their 

likelihood of drug possession that would be an irrational behavior representing individual or institutional bias.” See

Ibid. 

667 Ibid. This method is often utilized to study traffic stops and stop-and-frisk incidents since these practices are 

based on police wanting to “maximize the number of arrests for the possession of contraband (such as drugs or 

weapons) while expending the fewest resources. If they are acting in the most cost-efficient, rational manner, the 

officers may use racial stereotypes to increase the arrest rate per stop.” 

668 Andrew Gelman, “About that claim that police are less likely to shoot blacks than whites,” Statistical Modeling, 

Causal Inference, and Social Science, July 14, 2016, http://andrewgelman.com/2016/07/14/about-that-claim-thatpolice-are-less-likely-to-shoot-blacks-than-whites/; Uri Simonsohn, “Teenagers in Bikinis: Interpreting PoliceShooting Data,” Data Colada: Thinking about Evidence and Vice Versa, July 14, 2016, http://datacolada.org/50. 

669 Ibid. 
110 Police Use of Force 

likely to believe discrimination is an important determinant of economic outcomes. 

Black Dignity Matters.670 

A study by the Center for Policing Equity supports Fryer’s finding that black civilians are more 

likely to experience non-lethal force used against them.671 Investigating the average use-of-force 

rate by police officers over 12 geographically and demographically diverse locations, they found 

that force against black civilians was 3.6 times higher than towards white civilians, and 2.5 times 

higher than the overall rate for all residents. Among those arrested, 46 of every 1,000 black 

suspects reported experiencing excessive use of force compared to 36 of every 1,000 white 

suspects.672 

Ron Davis, former head of the Justice Department’s COPS office, stated that activists, law 

enforcement, and experts can continue to argue and attempt to prove if bias exist or does not, but 

determining that fact may not be significant to the person impacted or to their community.673 Davis 

stated: “from the community that’s receiving it . . . it doesn’t feel like a disparity. It feels like 

bias—it feels like racism.”674 Retired Police Chief, Noble Wray of Wisconsin, discussed this 

tension between officers and communities and strategies on implementing better practices during 

a briefing on police practices the Commission’s Delaware State Advisory Committee held in 2017: 

When we are talking to officers, you know, we talk about how [implicit bias] can 

impact their daily work. How it can impact how they investigate, who they stop, 

who they search. We don’t just focus on officers, command level, we talk to them 

as well. How much of a police presence can affect someone? Do they consider 

talking to community members? Because this is in a larger context.675

Those law enforcement experts and policing critics who find detrimental effects of implicit bias 

agree that these disparities cannot be overcome without effective community-oriented policing 

strategies. According to the National Initiative for Building Community Trust and Justice, 

“implicit bias focuses on how largely unconscious psychological processes can shape authorities’ 

actions and lead to racially disparate outcomes even where actual racism is not present.”676 Implicit 

biases are even more difficult to address than explicit racial biases because they can exist without 

individuals realizing that they hold negative beliefs.677 Thus, implicit bias training is meant to help 

 

670 Fryer, “An Empirical Analysis of Racial Differences in Police Use of Force,” supra note 658 at 36.

671 Goff, et al., The Science of Justice: Race, Arrests, and Police Use of Force, supra note 12. 

672 Ibid. 

673 Arthur, et al., “Shot by Cops and Forgotten,” supra note 52. 

674 Ibid. 

675 Chief Noble Wray, retired Police Chief of Madison, Wisconsin, Delaware Hearing Transcript at 37. 

676 National Network for Safe Communities at John Jay College, “National Initiative for Building Community Trust 

& Justice,” https://nnscommunities.org/our-work/community-trust-initiative (last accessed Nov. 3, 2018). 

677 Phillip Atiba Goff, Karin Danielle Martin, Meredith Gamson Smiedt, Protecting Equity: The Consortium for 

Police Leadership in Equity Report on the San Jose Police Department, The Consortium for Police Leadership in 

Equity, 2016, http://policingequity.org/wp-content/uploads/2016/07/Final-San-Jose-Report.circ_.pdf. 
Changing Law Enforcement Behavior 111 

train officers to recognize their subconscious prejudices and bias regarding factors such as race, 

gender, and/or sexuality.678 But some argue that this training is no guarantee against discriminatory 

policing practices.679

To help address these issues, Ezekiel R. Edwards, Director of the ACLU Criminal Law Reform 

Project, suggests that police departments should establish strict policies that prohibit law 

enforcement from profiling on the basis of race, ethnicity, national origin, sexual orientation, 

gender, and gender identity.680 Edwards adds that police departments should adopt the policies and 

procedures articulated in the End Racial Profiling Act.681 Andrea Ritchie, Researcher-in-Residence 

at the Social Justice Institute of the Barnard Center for Research on Women, and Delores JonesBrown, Professor at John Jay College of Criminal Justice, recommend training for all police 

officers on how to interact with members of various groups including women of color, children, 

pregnant women, and LGBT people.682 In addition, PolicyLink suggests requiring training that 

builds officers’ skills related to problem-solving strategies, conflict mediation techniques, and deescalation tactics.683 

Others believe that implicit bias training is valuable and should be mandatory. Michele Jawando, 

Vice President, and Chelsea Parsons, Vice President of Gun Violence Prevention from the Center 

for American Progress suggest augmenting training with implicit bias modules—particularly for 

any law enforcement officers involved in federal task forces.684 Jawando and Parsons believe that 

 

678 Wray, Delaware Hearing Transcript at 55-56; Ben Feist, Legislative Director, ACLU of Minnesota, Minnesota 

Hearing Transcript at 88-89; James Stuart, Sheriff of Anoka County, Minnesota Hearing Transcript at 217. 

679 Correll, et al., “The Police Officer’s Dilemma: A Decade of Research on Racial Bias in the Decision to Shoot,” 

Social and Personality Psychology Compass, supra note 642 at 201-13; Chuck, “Can ‘Implicit Bias’ Training Stop 

Police Officers From Acting on Hidden Prejudice?” supra note 651. 

680 See Edwards Statement at 4. 

681 H.R. 1933, 114th Cong. (2015). Introduced in the U.S. House of Representatives on April 22, 2015, the 

legislation would have (a) prohibited any law enforcement agent or agency from engaging in racial profiling, (b) 

granted the United States or an individual injured by racial profiling the right to obtain declaratory or injunctive 

relief, (c) required federal law enforcement agencies to maintain adequate policies and procedures to eliminate racial 

profiling and to cease existing practices that permit racial profiling, (d) required state or local governmental entities 

or state, local, or tribal law enforcement agencies that apply for grants under the Edward Byrne Memorial Justice 

Assistance Grant Program and the Cops on the Beat Program to certify that they maintain adequate policies and 

procedures for eliminating racial profiling and have eliminated any existing practices that permit or encourage racial 

profiling, (e) authorized the Attorney General to award grants and contracts for the collection of data relating to 

racial profiling and for the development of best practices and systems to eliminate racial profiling and (f) required 

the Attorney General to issue regulations for the collection and compilation of data on racial profiling and for the 

Act’s implementation. U.S. Representative Sheila Jackson Lee sponosored another version of the bill in the 2017-

2018 session. See H.R. 1498, 115th Cong. (2017), https://www.congress.gov/bill/115th-congress/house-bill/1498. 

682 Andrea Ritchie and Delores Jones-Brown, “Policing Race, Gender, and Sex: A Review of Law Enforcement 

Polices,” Women & Criminal Justice, vol. 27, no. 1 (2017). 

683 Advancement Project and PolicyLink, Limiting Police Use of Force: Promising Community-Centered Strategies, 

supra note 32 at 13-15. 

684 Michele L. Jawando and Chelsea Parsons, “4 Ideas That Could Begin to Reform the Criminal Justice System and 

Improve Police-Community Relations,” Center for American Progress, Dec. 18, 2014, 
112 Police Use of Force 

such training should seek to raise awareness about personally held biases and should be linked to 

federal criminal justice grants.685 

At the Commission’s briefing, James Chanin provided an example of how implicit bias training 

helped the Oakland Police Department address its problems with racial profiling and implicit bias 

training.686 Chanin stated that the Oakland Police Department retained the services of Jennifer 

Eberhardt from Stanford University to assist them with this particular aspect of their reform 

efforts.687 Eberhardt reviewed footage from body-worn cameras as a way to understand how 

officers could better interact with people of color to de-escalate potentially tense encounters.688

The footage exposed greater disparities in the stop and search rates of black and Latino people 

than other racial or ethnic groups, despite the fact that the police discovered no contraband.689

Similarly, Chief Wray stated that Dr. Eberhardt’s study helped him understand how biases are 

universal and can get reinforced through the police work.690 Wray stated that: 

[I]f you go to the same call in the same neighborhood over and over and over again, 

and even though you may logically think that [ ] young African American men are 

okay, you go to that call, it’s going to reinforce something. And that’s what a lot of 

times [ ] what you will see with police officers . . . I recognized that it’s not just the 

white officers, because I would go to their trainings with both my arms open and 

say, Hey, this is for you guys . . . But it is something that we all have, but it’s 

reinforced a lot of times by the work that we do.691 

Police Chief Jeff Hadley, of the Kalamazoo, Michigan Department of Public Safety, also 

commissioned a study of racial profiling in traffic stops by police in his city.692 Similar to other 

studies conducted around the country, results showed disparate stops of black motorists.693 Hadley 

told PERF in its 2015 Defining Moments of Police Chiefs report that: 

 

https://www.americanprogress.org/issues/civil-liberties/ report/2014/12/18/103578/4-ideas-that-could-begin- toreform-the-criminal-justice-system-and-improve- police-community-relations/. 

685 Ibid. However, overly-conditioning federal grants could pose problems under the U.S. system of federalism, 

unless it is necessary to enforce civil rights law; See Order Granting Motion for Summary Judgement, Santa Clara 

v. Trump and San Francisco v. Trump, Nos. 17-CV-00574 and 17-CV-00485 (N.D. Cal. 2017) (federal government 

may not condition criminal justice grants on matters outside its jurisdiction); Order Denying Defendants’ Motion to 

Dismiss, Santa Clara and San Francisco v. Trump, No. 17-CV-04642 (N.D. Cal. 2018). 

686 See Chanin Statement at 11. 

687 Ibid. 

688 Ibid. 

689 Ibid. 

690 Wray, Delaware Hearing Transcript at 55-56. 

691 Ibid. 

692 John Lamberth, Traffic Stop Data Analysis Project: The City of Kalamazoo Department of Public Safety, Final 

Report for the City of Kalamazoo Department of Public Safety, 2013, 

http://media.mlive.com/kzgazette_impact/other/KDPS%20Racial%20Profiling%20Study.pdf. 

693 David Harris, Driving While Black: Racial Profiling on Our Nation’s Highways, ACLU Special Report, 1999; 

Gina Castle Bell, Mark Hopson, Richard Craig, and Nicholas Robinson, “Exploring Black and White Accounts of 
Changing Law Enforcement Behavior 113 

[T]he officers initially were unhappy. They felt that I had hung them out to dry, and 

that people were pointing at them and calling them racist. No one was doing that, 

but that is how they felt.694 

As a result, Hadley decided to have his entire department go through implicit bias training with 

the hope to increase officer morale. Hadley stated that he wanted to learn “how our minds work 

and what we all can to do to understand and manage our human biases.”695

At the time of this report, no studies have been conducted to see if implicit bias training has aided 

in permanently eliminating bias, yet research has suggested that it may be possible to address and 

reduce implicit bias through proper training and policy interventions.696 When surveyed, many 

officers have indicated training helped them with bias in written evaluations about the trainings 

offered in their precincts.697 Calvin Lai, a postdoctoral researcher at Harvard University, argues 

that while there are several interventions that have been shown to be effective in reducing bias in 

the short-term, often the effects disappear over time.698 Lai argues that since it is difficult to control 

implicit bias in real-world and often stressful situations, examining broader social interventions 

may be beneficial. “Rather than trying to change people at the individual level, we can think about 

trying to restructure the way that people make decisions.”699 

De-escalation Training 

De-escalation training is recognized by a number of experts as an important tool for mitigating or 

replacing the need for using force. The National Association for Civilian Oversight of Law 

Enforcement recognizes de-escalation training as a current best practice in use of force 

management. They have called for 

police use of force management systems to include a heavy emphasis on deescalation training and policies that increase officer safety, mitigate the overall need 

 

21st-Century Racial Profiling: Riding and Driving While Black,” Qualitative Research Reports in Communication, 

vol. 15, no. 1 (2014); Richard Lundman and Robert Kaufman, “Driving While Black: Effects of Race, Ethnicity, and 

Gender on Citizen Self-Reports of Traffic Stops and Police Actions,” Criminology, vol. 41, no. 1 (2003). 

694 Police Executive Research Forum, Critical Issues in Policing Series: Defining Moments for Police Chiefs, 2015, 

at 36-37, http://www.policeforum.org/assets/definingmoments.pdf. 

695 Ibid. 

696 National Network for Safe Communities at John Jay College, “National Initiative for Building Community Trust 

& Justice, Implicit Bias,” https://trustandjustice.org/resources/intervention/implicit-bias (last accessed Nov. 3, 

2018). 

697 Carey and Goode, “Police Try to Lower Racial Bias, but Under Pressure, It Isn’t So Easy,” supra note 604. 

698 Adam Hoffman, “Can Science Help People Unlearn Their Unconscious Bias?” Smithsonian Magazine, July 2, 

2015, https://www.smithsonianmag.com/science-nature/can-science-help-people-unlearn-their-unconscious-biases180955789/. 

699 Ibid. 
114 Police Use of Force 

to use force, and reduce the number of violent encounters between police and the 

public.700 

However, most states (34) do not require de-escalation training for all officers. Even in the states 

that do require de-escalation training, the statewide required hours can range from no minimum 

requirement to three hours every three years up to four hours every year, with some localities 

requiring more hours.701

De-escalation training focuses on trying to slow down actions before they escalate into a situation 

where an officer may feel that force is necessary. Fatal police shootings often unfold quickly: for 

instance, the shots that killed Derry Touchtone in Georgia were fired just 35 seconds after the 

officer’s arrival; for Michael Brown in Ferguson, it was two minutes; and for 12-year-old Tamir 

Rice in Cleveland, it was just two seconds.702 De-escalation techniques are meant to train officers 

not to automatically respond in tense situations that may lead them to act on subconscious biases 

and resort to using unnecessary force.703 At the Commission’s briefing, David Klinger, Professor 

of Criminology and Criminal Justice at University of Missouri, argued that all law enforcement 

should get the appropriate tactical training that teaches them how to create distance, time and 

space, and how to interact with people.704 He stated that with more distance between the officer 

and suspect, there is less personal involvement which potentially ensure the safety of both 

individuals.705 

In high-stress situations, emotions may get out of hand and individuals may be unable to think 

clearly. As a consequence, like others, police officers may act in ways that could cause them or 

others harm. De-escalation trainers suggest that rather than running into a situation and making 

split-second decisions, officers should approach a suspect calmly, try to build rapport, and have a 

strategy already planned out with their partner.706 Trainers teach them that only one officer should 

speak to a suspect—rather than multiple officers shouting directives—to avoid confusion about 

which directives to follow.707 

 

700 See NACOLE Statement at 8. 

701 Curtis Gilbert, “Not Trained to Not Kill,” American Public Media Reports, May 5, 2017,

http://www.apmreports.org/story/2017/05/05/police-de-escalation-training. 

702 Ibid. 

703 Dart, “‘Verbal Judo’: the police tactic that teaches cops to talk before they shoot,” supra note 604; Drake Baer, 

“The Dallas Police Force Is Evidence that ‘De-escalation’ Policing Works,” The Cut, July 8, 2016, 

https://www.thecut.com/2016/07/deescalation-policing-works.html; Police Executive Research Forum, An 

Integrated Approach to De-Escalation and Minimizing Use of Force, Critical Issues in Policing Series, 2012, 

http://samuelwalker.net/wp-content/uploads/2014/12/PERF-De-Escalation_v5.pdf. 

704 Klinger, Briefing Transcript at 333. 

705 Ibid. 

706 Police Executive Research Forum, Guiding Principles on Use of Force, supra note 28; Police Executive 

Research Forum, An Integrated Approach to De-Escalation and Minimizing Use of Force, supra note 703. 

707 Police Executive Research Forum, Guiding Principles on Use of Force, supra note 28; Naomi Martin, “Dallas 

police excessive-force complaints drop dramatically,” Dallas News, Nov. 16, 2015, 

https://www.dallasnews.com/news/crime/2015/11/16/dallas-police-excessive-force-complaints-drop-dramatically. 
Changing Law Enforcement Behavior 115 

Throughout much of the policing profession, there is a growing recognition that while force could

be used, it does not mean it should be used.708 Washington, D.C.’s Police Chief Cathy Lanier posits 

that “[t]he question is not, ‘can you use deadly force?’ The question is: ‘did you absolutely have 

to use deadly force?’”709 Highlighting this point, Lanier explains that police training should focus 

on what steps could be taken to reduce perceived need for use of force. Lanier questions the 

usefulness of the 21-foot rule being taught as a strategy to de-escalate a situation that could lead 

to a fatal encounter.710 The 21-foot rule is a common training technique that instructs officers to 

remain at least 21 feet away from a suspect armed with an edged weapon (e.g., a knife) when their 

gun is still holstered. 711 The “rule” states that an individual poses a potential danger to an officer 

once they move into that 21-foot boundary.712 Chief Lanier argues that many shootings involve 

people with mental health needs who may be armed with a knife and who are 30 feet away; and 

instead of the on-scene officers taking cover and waiting for backup, the officers approach, 

entering the 21-foot limit, and shoot. And when investigated they say: “[w]ell, we were justified 

in shooting; the person was within 21 feet and had an edged weapon.”713 Lanier argues that the 

mentality that this type of behavior is justified needs to change within police departments in order 

to reduce these incidents. Mapping Police Violence found that in 69 percent of cases where an 

individual was armed with a knife, police did not attempt to disarm them or de-escalate the 

situation before using deadly force.714 

Lanier and other law enforcement officials argue that the overall training and mindset of officers 

needs to change for reform to happen. Law enforcement officials suggest that the analysis after a 

fatal shooting should not focus solely on the moment when deadly force was used.715 Rather, 

Lanier adds that: 

You start from the beginning and look at each and every decision the officer made 

prior to using force. And you ask: Where was the first decision that went wrong 

that led to having to use force later?”716 

 

708 Police Executive Research Forum, Re-Engineering Training on Police Use of Force, supra note 309 at 17 

(emphasis in original). 

709 Ibid. 

710 Ibid. 

711 See Nancy Marcus, Out of Breath and Down to the Wire: A Call for Constitution-Focused Police Reform, 59 

HOW. L.J. 5 (2015). Marcus argues that some police trainings fail to instruct law enforcement officers clearly about 

the constitutional boundaries of permissible police force, and it is even possible that some have done so 

intentionally, for plausible deniability purposes. 

712 Police Executive Research Forum, An Integrated Approach to De-Escalation and Minimizing Use of Force, 

supra note 703 at 14. 

713 Police Executive Research Forum, Re-Engineering Training on Police Use of Force, supra note 309 at 17. 

714 Mapping Police Violence, “2017 Police Violence Report,” https://policeviolencereport.org/ (last accessed Nov. 3, 

2018). 

715 Police Executive Research Forum, Re-Engineering Training on Police Use of Force, supra note 309. 

716 Ibid. 
116 Police Use of Force 

Thus, the idea is to train officers to avoid placing themselves in a situation that is potentially 

dangerous and where their firearm may be the only option. For instance, the Washington, D.C. 

police department has updated its rules for using deadly force and its mission statement, and for 

the first time has “incorporate[ed] the phrase ‘sanctity of life.’”717 This suggests the beginning of 

a cultural shift in the way officers think about and are trained to handle encounters with civilians. 

Instead of solely focusing on if the officer felt justified in pulling his or her gun on a suspect, 

officials are beginning to question if the situation—where excessive force felt unavoidable—was 

preventable in the first place. 

Police have not only come under scrutiny for how they handle incidents with individuals, but also 

when dealing with mass demonstrations.718 The Task Force recommends national standards for 

policing mass demonstrations that employ a continuum of managed tactical responses.719 These 

standards are designed to minimize the appearance of a military-like operation, and to avoid using 

provocative tactics and equipment that undermine civilian trust.720 Montague Simmons 

recommends conflict resolution training so police officers know how to de-escalate situations 

rather than deploying some level of force in order to control crowds and individuals.721 Some 

recommended de-escalation strategies from Advancement Project and PolicyLink are as follows: 

 Officers shall use advisements, warnings, and verbal persuasion, when possible, 

before resorting to force. 

 Force shall be de-escalated immediately as resistance decreases. 

 When feasible, officers will use disengagement, area containment, surveillance, 

waiting out a subject, summoning reinforcements, and/or calling in specialized 

units, in order to reduce the need for force and increase officer and civilian safety. 

 Officers shall allow individuals time to submit to arrest before force is used 

whenever possible 

 Police departments shall explicitly prohibit neck holds, except where lethal force is 

authorized. 

 

717 Peter Hermann, “A Post reporter went to a D.C. police use-of-force training exercise. Here’s what he learned.” 

Washington Post, Dec. 15, 2017, https://www.washingtonpost.com/news/true-crime/wp/2017/12/15/a-post-reporterwent-to-a-d-c-police-use-of-force-training-exercise-heres-what-he-learned/?utm_term=.f762c62732a7. 

718 Advancement Project and PolicyLink, Limiting Police Use of Force: Promising Community-Centered Strategies, 

supra note 32; Ben Kesling and Dan Frosch, “Justice Department Faults Police Response to Ferguson Unrest,” The 

Wall Street Journal, Sept. 3, 2015, https://www.wsj.com/articles/justice-department-faults-police-response-toferguson-unrest-1441300481; Tony Narr, Jessica Toliver, Jerry Murphy, Malcolm McFarland, Joshua Ederheimer, 

Police Management of Mass Demonstrations: Identifying Issues and Successful Approaches, Police Executive 

Research Forum, 2006, 

http://www.policeforum.org/assets/docs/Critical_Issues_Series/police%20management%20of%20mass%20demonst

rations%20-%20identifying%20issues%20and%20successful%20approaches%202006.pdf. 

719 The President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century 

Policing, supra note 9 at 25. 

720 Ibid. 

721 Simmons, Briefing Transcript at 30. 
Changing Law Enforcement Behavior 117 

 Police departments shall explicitly prohibit head strikes with a hard object, except 

where lethal force is authorized. 

 Police departments shall explicitly prohibit using force against persons in 

handcuffs, except as objectively reasonable to prevent imminent bodily harm to the 

officer or another person or persons, or, as objectively reasonable, where physical 

removal is necessary to overcome passive resistance. 

 Un-holstering a firearm and pointing it at a person constitutes a use of force, and 

shall accordingly be done only as objectively reasonable to accomplish a lawful 

police objective. 

 Officers shall not use force to attempt to effect compliance with a command that is 

unlawful. Any use of force by an officer to subdue an individual resisting arrest or 

detention is unreasonable when the initial arrest or detention of the individual was 

unlawful.722

Many law enforcement experts agree that training that includes more emphasis on de-escalation 

techniques is a positive direction in police reform.723 Some police departments have demonstrated 

that de-escalation can indeed work to make neighborhoods safer, reduce civilian complaints, and 

keep officers safe. 724 Because every police engagement is unique, it is hard to definitively measure 

the effectiveness of de-escalation training. Although there are no studies that conclusively show 

de-escalation training lowers the likelihood of an officer’s use of force, there is some evidence that 

suggests it can help: 

 A 2014 study analyzed the use of force at six policing agencies in Georgia. Officers 

trained in crisis intervention techniques were more likely to verbally engage 

mentally ill people during interactions. The trained officers were also more likely 

to call for mental health transport rather than simply arresting the individuals.725

 In 2009, prior to the implementation of de-escalation training, the Dallas Police 

Department received 147 excessive force complaints.726 In 2014, there were only 

53, and by 2016, the number of excessive force complaints had dropped to 21.727

 Excessive force complaints have also fallen in other major U.S. cities that have 

implemented de-escalation training and/or policies.728

 

Advancement Project and PolicyLink, Limiting Police Use of Force: Promising Community-Centered Strategies, 

supra note 32 at 11. 

723 Police Executive Research Forum, Re-Engineering Training on Police Use of Force, supra note 309 at 3; 

Stoughton, “How Police Training Contributes to Avoidable Deaths: To save lives, cops must be taught to think 

beyond the gun belt,” supra note 604. 

724 Ibid. 

725 Gilbert, “Not Trained to Not Kill,” supra note 701. 

726 Drake Baer, “The Dallas Police Force Is Evidence That ‘De-escalation’ Policing Works,” Science of Us, July 8, 

2016, http://nymag.com/scienceofus/2016/07/deescalation-policing-works.html. 

727 Dallas Police Department, “Response to Resistance,” http://www.dallaspolice.net/reports/Pages/responseresistance.aspx (last accessed Nov. 3, 2018). 

728 Baer, “The Dallas Police Force Is Evidence That ‘De-escalation’ Policing Works,” supra note 726. 
118 Police Use of Force 

Other cities where de-escalation techniques seem to be making positive strides are Richmond, 

California; Las Vegas, Nevada; Seattle, Washington; and New York City.729 For example, 

Richmond has witnessed a significant decrease in use of force (both lethal and non-lethal) without 

seeing an increase in officer fatalities.730 The Las Vegas Metropolitan Police Department has also 

taken direct steps by adopting a policy stating that “the department respects the value of every 

human life, and the application of deadly force is a measure to be employed in the most extreme 

circumstances.”731 Working with The Center for Policing Equity, the police department found that 

many of their use of force cases were occurring following foot chases. Thus, they implemented a 

new rule stating that the officer chasing a suspect on foot is not allowed to touch the suspect once 

they are apprehended.732 After the new rules were instituted in 2012, the department saw about a 

10 percent decrease in use of force in 2013, dropping from roughly 1,000 instances to about 900.733

The decline meant there were 100 fewer chances for someone to get hurt or killed. Similarly, in 

Dallas, Texas, the police department began implementing de-escalation training and policies as 

early as 2010.734 The available data show a significant decline in the number of officer injuries and 

a smaller decline in civilian injuries since de-escalation training began in Dallas.735 

However, some police officers and law enforcement officials have cited concerns that the 

hesitation these techniques require may cost officers their lives, and a common motto among 

officers is: “complacency kills.”736 Seth Stoughton, a retired officer and now a professor of law 

who researches policing, has written that traditionally, training has emphasized officer safety 

above all else, and new recruits are taught that the “first rule of law enforcement” is “to go home 

at the end of their shift.”737 On the surface, this message is not problematic, due to obvious safety 

reasons for both law enforcement and the communities they serve. However, Stoughton argues 

that it is problematic when officers are taught that every encounter and every individual is a 

 

729 Stoughton, “How Police Training Contributes to Avoidable Deaths: To save lives, cops must be taught to think 

beyond the gun belt,” supra note 604; Timothy Williams, “Long Taught to Use Force, Police Warily Learn to Deescalate,” New York Times, June 28, 2015, https://www.nytimes.com/2015/06/28/us/long-taught-to-use-force-policewarily-learn-to-de-escalate.html?_r=0. 

730 Stoughton, “How Police Training Contributes to Avoidable Deaths: To save lives, cops must be taught to think 

beyond the gun belt,” supra note 604. 

731 Police Executive Research Forum, Re-Engineering Training on Police Use of Force, supra note 309. 

732 Phillip Atiba Goff and Karin Danielle Martin, Unity Breeds Fairness: The Consortium for Police Leadership in 

Equity Report on the Las Vegas Metropolitan Police Department, The Consortium for Police Leadership in Equity, 

2013; Marcus Woo, “How Science is Helping America Tackle Police Racism,” Wired, Jan. 21, 2015, 

https://www.wired.com/2015/01/implicit-bias-police-racism-science/. 

733 Ibid. 

734 Dallas Police Department, Response to Resistance, http://www.dallaspolice.net/reports/Pages/responseresistance.aspx. 

735 Ibid. Police/Civilian Injuries: 487/789 (2013), 436/1006 (2014), 215/560 (2015), 234/629 (2016) (data provided 

on website through Dallas Police Departments’ “Explore the Data” summaries). 

736 Stoughton, “How Police Training Contributes to Avoidable Deaths: To save lives, cops must be taught to think 

beyond the gun belt,” supra note 604. 

737 Ibid. 
Changing Law Enforcement Behavior 119 

potential threat.738 When exaggerated or imbalanced, these messages can over-emphasize the 

possibility of threat and danger, as opposed to focusing on how best to protect communities.739

Stoughton explains that these messages are not just verbally explained to new officers, they are 

also 

shown painfully vivid, heart-wrenching dash-cam footage of officers being beaten, 

disarmed, or gunned down after a moment of inattention or hesitation. They are told 

that the primary culprit isn’t the felon on the video, it’s the officer’s lack of 

vigilance.740 

Retired officer Stoughton argues that such messages of “hesitation can be fatal” or “complacency 

kills” are consistently reinforced throughout an officer’s training, and he believes that police are 

therefore taught to shoot before a threat is fully analyzed.741 He argues that a common phrase 

among officers sums up this mentality: “Better to be judged by twelve than carried by six.”742

Therefore, he argues that when a shooting happens, it is often not because an officer is angry, 

frustrated, or biased; instead, “they shoot because they are afraid.”743 Police reform experts argue 

that this type of formal training and informal conversations that highlight, exacerbate, and 

perpetuate fear increase the likelihood that an officer may use excessive force.744 And rather than 

focus on fear, training and changing officers’ cultural norms could counter and possibly reduce 

fear, while teaching officers how to effectively manage it and operate around it, instead of acting 

on it.745 

The Justice Department’s Guide to Critical Issues in Policing notes that due to the proliferation of 

guns in the United States, law enforcement agencies have unique challenges in responding to 

incidents involving civilians armed with firearms.746 The DOJ report does not directly address gun 

control, but it does suggest that law enforcement officials could look to other countries that have 

 

738 Ibid. 

739 These are often cited as the “warrior” versus “guardian” training techniques. See e.g., Police Executive Research 

Forum, Re-Engineering Training on Police Use of Force, supra note 309. 

740 Ibid. 

741 Ibid.; see also Williams, “Long Taught to Use Force, Police Warily Learn to De-escalate,” supra note 729. 

742 Stoughton, “How Police Training Contributes to Avoidable Deaths: To save lives, cops must be taught to think 

beyond the gun belt,” supra note 604. 

743 Ibid. 

744 Ibid. 

745 Ibid.; See e.g., Redditt Hudson, “I’m a black ex-cop, and this is the real truth about race and policing,” Vox, July 

7, 2016, https://www.vox.com/2015/5/28/8661977/race-police-officer; German Lopez, “An ex-cop from Arizona 

was acquitted for shooting an unarmed, sobbing man,” Vox, Dec. 8, 2017, https://www.vox.com/policy-andpolitics/2017/12/8/16752914/police-arizona-philip-brailsford-daniel-shaver; Roz Edwards, “Watch Police Diffuse 

Gun-Toting White Man Peacefully Even After Stand Off!” Chicago Defender, Sept. 5, 2014, 

https://chicagodefender.com/2014/09/05/watch-police-diffuse-gun-toting-white-man-peacefully-even-after-standoff/. 

746 U.S. Dep’t of Justice, Guide to Critical Issues in Policing, Community Relations Toolkit for Policing, 2018 at 2, 

https://www.justice.gov/crs/file/836416/download. 
120 Police Use of Force 

been successful in handling encounters with mentally ill persons or others who are behaving 

dangerously but are only armed with knives, rocks, or similar weapons.747 For instance, police in 

the United Kingdom have had remarkable success at resolving such encounters without resorting 

to using firearms and utilizing strategies that begin at not using force—such as communication 

strategies—and then gradually increase as the situation warrants it.748 Despite having similar rates 

of knife attacks against police officers, in all but four cases in 2017, officers in the UK handled the 

situation without resorting to the use of firearms.749 For example, the Assistant Police Constable 

of the Scotland police said at the PERF conference that: 

We’ve shot two or three people in the last 10 years. The last police shooting was 

three and a half years ago. To put it in some context, we have 1.8 million emergency 

calls a year.750 

It is understandable that police officers are concerned for their safety, because law enforcement 

officers face many risks. According to data collected by the FBI, over the past decade 

an average of 51 officers were feloniously killed in the line of duty . . . and an 

average of 57,000 officers were assaulted every year (about 25 percent of those 

assaults resulted in physical injuries).751 

However, in terms of percentages 

officers were assaulted in about 0.09 percent of all interactions, were injured in 0.02 

percent of interactions, and were feloniously killed in 0.00008 percent of 

interactions.752

In comparison, in one study, researchers found that officers killed or injured an estimated 55,400 

civilians in 2012.753 On average, an estimated 1 in 291 stops and arrests resulted in hospital-treated 

 

747 Ibid. 

748 Police Executive Research Forum, Re-Engineering Training on Police Use of Force, supra note 309. 

749 Mapping Police Violence, “2017 Police Violence Report,” https://policeviolencereport.org/ (last accessed Nov. 3, 

2018). 

750 Ibid. The DOJ report notes that a key element in the UK response is a tool called the “National Decision Model” 

(NDM) which helps officers “make logical, well-informed decisions about many things, including how they respond 

to incidents involving mentally ill persons with knives, screwdrivers, rocks, or similar weapons.” See U.S. Dep’t of 

Justice, Guide to Critical Issues in Policing, supra note 746. 

751 Stoughton, “How Police Training Contributes to Avoidable Deaths: To save lives, cops must be taught to think 

beyond the gun belt,” supra note 604; FBI: Uniform Crime Reporting, “2013: Law Enforcement Officers Killed & 

Assaulted,” https://ucr.fbi.gov/leoka/2013/officers-feloniously-killed/felonious_topic_page_-2013 (last accessed 

Nov. 3, 2018). 

752 Stoughton, “How Police Training Contributes to Avoidable Deaths: To save lives, cops must be taught to think 

beyond the gun belt,” supra note 604. 

753 It is significant to note that deaths from legal police intervention are under-identified or undercounted in U.S. 

Vital Statistics, FBI Supplemental Homicide Reports, and Bureau of Justice Statistics Arrest-Related Deaths data; 
Changing Law Enforcement Behavior 121 

injury or death of a suspect or bystander, a ratio of 34 per 10,000 stops and arrests. Consistent with 

other studies, black, Latino and Native Americans were subject to higher stop and arrest rates than 

white and Asian Americans.754 And the Police Public Contact Surveys (PPCS)755 found that black 

people are more likely than white or Latino people to experience physical force during a police 

stop.756 These statistics contextualize the realities that policing is inherently risky and does not 

minimize the very real risks that both officers and civilians face. Thus, efforts to improve 

knowledge about and train officers to be responsive to best practices to preserve life have material 

benefits to police and communities. 

Hypermasculinity 

Another crucial component to the excessive use of force problem is the approach to policing that 

centers on the idea of unquestioned authority. Researchers suggest that excessive use of force may 

stem from perceived societal expectations regarding masculinity.757 Research indicates that 

ongoing manifestation in society of support for “hypermasculinity”758 privileges men holding a 

socially dominant status over women and children—leaving men to persistently “prove” their 

 

these data sources capture approximately 46-49 percent of these fatalities. Therefore, this study primarily utilized the 

Guardian data and information from the Washington Post. See Ted Miller, Bruce Lawrence, Nancy Carlson, Delia 

Hendrie, Sean Randall, Ian Rockett, and Rebecca Spicer, “Perils of police action: a cautionary tale from US data 

sets,” Injury Prevention, vol. 23 (2016) at 27-32. 

754 Ibid. In addition, incidents of perceived racial profiling of Asian Americans were also reported to the 

Commission’s Minnesota State Advisory Committee. See Jon Vang, Minnesota Hearing Transcript at 368-70. Jon 

Vang recounted how he was pulled over by Minneapolis police in what he perceived to be an unjustified stop, at 

which point the officer informed Vang that he had a criminal record and therefore the officer needed to search the 

car. According to Vang, the officer found a salt packet, and Vang was arrested for narcotics possession, and only 

after taking him “all the way to jail,” did the officers release him. Ibid. at 370. See also Linda Herman, Asian 

Americans Organizing Project, Minnesota Hearing Transcript at 363-65. As Linda Herman, the executive director 

of Asian Americans Organizing Project in Minneapolis, testified, language barriers exacerbate interactions between 

Asian-Americans and police. For example, Herman relayed a story “one of the residents” she had surveyed told her, 

where officers drew their firearms against an older Asian man when he failed to comply with their instructions, 

despite the “plea from [his son] explaining that his father did not speak English.” Ibid. at 364-65. 

755 The PPCS provides detailed information on the characteristics of persons who had some type of contact with 

police during the year, including those who contacted the police to report a crime or were pulled over in a traffic 

stop. The PPCS interviews a nationally representative sample of residents age 16 or older as a supplement to the 

National Crime Victimization Survey. 

756 Shelley Hyland, Lynn Langton, and Elizabeth Davis, Police Use of Nonfatal Force, 2002-11, U.S. Dep’t of 

Justice, Office of Justice Programs, Bureau of Justice Statistics, 2015, 

https://www.bjs.gov/content/pub/pdf/punf0211.pdf. This may be in part to lack of fulsome data regarding Latinos. 

See, e.g., Zuleyka Latigua-Williams, “Criminal Justice is Becoming a ‘Latino Issue,’ Yet There Is Still Much More 

We Don’t Know About Latinos and the Criminal Justice System,” The Atlantic, Sept. 26, 2016, 

https://www.theatlantic.com/politics/archive/2016/09/why-criminal-justice-is-becoming-a-latino-issue/500864/ 

(most data about policing are limited to analyses of blacks and whites). 

757 Goff, et al., Protecting Equity: The Consortium for Police Leadership in Equity Report on the San Jose Police 

Department, supra note 677 at 3-4. 

758 R.W. Connell, Masculinities, 2nd ed. (Berkeley: University of California Press, 2005). 
122 Police Use of Force 

manhood to other men.759 Moreover, some social scientists argue that many men perceive 

manhood “not as a developmental guarantee, but as a status that must be earned . . . [And] once 

manhood status is earned, it can be lost relatively easily.”760 Therefore, due to the anxiety of losing 

one’s manhood and the importance of an unquestioned masculine identity, threats to this sense of 

oneself as a “man” in society are a frequent (albeit often subconscious) threat to men.761 

Some evidence shows that this normative organization of society influences law enforcement as 

follows: at least a portion of law enforcement officers (who are over 86 percent male)762 expect 

their orders not to be challenged and to be in control of all situations.763 Researchers have found 

that because manhood and masculinity are seen as precarious, challenges to masculine identity 

produce anxiety, which may then compel some to demonstrate their manhood through forceful 

action.764 Due to feeling like their masculinity and authority are in question, this mindset can lead 

some police to react negatively (and excessively) towards a civilian when confronted.765 Such 

encounters can then quickly escalate a situation, making it more unsafe for everyone. Ron 

Martinelli, a retired police detective who has been teaching de-escalation techniques since the 

Rodney King incident in Los Angeles in 1991,766 also warns against this perspective and argues 

 

759 Frank Rudy Cooper, “Who’s The Man?”: Masculinities Studies, Terry Stops, and Police Training, 18 COLUM. J.

GENDER & L. 671 (2009); see also Tim Carrigan, Bob Connell, and John Lee, “Towards a New Sociology of 

Masculinity,” Theory and Society, vol. 14, no. 5 (1985) at 551-604; Connell, Masculinities, supra note 758. 

760 Jonathan Weaver, Joseph Vandello, Jennifer Bosson, and Rochelle Burnaford, “The Proof is in the Punch: 

Gender Differences in Perceptions of Action and Aggression as Components of Manhood,” Sex Roles vol. 62 

(2010). 

761 Ibid. 

762 Data USA, “Police Officers,” https://datausa.io/profile/soc/333050/#demographics (last accessed Nov. 3, 2018). 

763 Sunil Dutta, “I’m a cop. If you don’t want to get hurt, don’t challenge me,” Washington Post, Aug. 19, 2014, 

https://www.washingtonpost.com/posteverything/wp/2014/08/19/im-a-cop-if-you-dont-want-to-get-hurt-dontchallenge-me/?utm_term=.ff29e2695cc5; D.K, “Policing in America: What the cops say” Economist, April 27, 

2015, https://www.economist.com/blogs/democracyinamerica/2015/04/policing-america. 

764 Joseph A. Vandello, Jennifer Bosson, Dov Cohen, Rochelle Burnaford, and Jonathan Weaver, “Precarious 

Manhood” Journal of Personal and Social Psychology, vol. 95, no. 6, (2008). When masculinity is challenged or 

considered threatened, men often respond with physical aggression because it is a cultural script that demonstrates, 

reinforces, and restores manhood. This does not necessarily mean that all men will behave in this fashion or utilize 

this cultural script, thus this response to a challenged identity should not be seen as inevitable. There are multiple 

masculinities that operate within society and have varying levels of dominance and power, depending on other social 

identities at play (e.g., race, ethnicity, sexuality). See R.W. Connell and James Messerschmidt, “Hegemonic 

Masculinity: Rethinking the Concept,” Gender and Society, vol. 19, no. 829, (2005); Jonathan Weaver, Joseph 

Vandello, Jennifer Bosson, and Rochelle Burnafordet al., “The Proof is in the Punch: Gender Differences in 

Perceptions of Action and Aggression as Components of Manhood,” Sex Roles 62, 2010 supra note 760. 

765 Goff, et al., Protecting Equity: The Consortium for Police Leadership in Equity Report on the San Jose Police 

Department, supra note 677. 

766 In 1991, videos of Los Angeles police officers brutally and excessively beating Rodney King, who is African 

American, swept the city and the nation. See, e.g., Chelsea Matiash and Lily Rothman, “Beating That Changed 

America: What Happened to Rodney King 25 Years Ago,” TIME, March 3, 2016, http://time.com/4245175/rodneyking-la-riots-anniversary/. The acquittal of the officers led to riots and protests, and the DOJ later identified a pattern 

and practice of racially discriminatory and excessive use of force, along with ongoing corruption, in the Los Angeles 

police department. In 2001, the Los Angeles Police Department entered into a consent decree to resolve these issues 
Changing Law Enforcement Behavior 123 

“that officers need to throw away any macho beliefs that they always have to triumph over the 

subject[.]”767 

Researchers have also found that the need to prove one’s masculinity can often take the form of 

harassing gay men (who are seen as a type of subjugated masculinity)768 and through the 

subordination and harassment of women.769 Angela Harris, Professor of Law at UC Davis, argues 

that excessive force and police brutality are forms of gendered violence, as they are mechanisms 

for officers to express their masculine identity.770 She argues that officers working in high-crime 

and impoverished areas may begin to see themselves as enforcers of the law in a “community of 

savages.”771 

Similarly, Frank Rudy Cooper, Professor of Law at Suffolk University, argues that another way 

that hypermasculinity and racial violence converge manifests in the context of racial profiling.772

He posits that male police officers will often stage masculinity contests when a male suspect is 

seen as being disrespectful.773 Cooper argues that there becomes a “face-off between men where 

one party is able to bolster his masculine esteem by dominating the other.”774 And critically, since 

hegemonic masculinity also “incorporates an expectation that one denigrates [ ] racial minority 

males,”775 racial profiling allows officers to boost and solidify both their racial and masculine 

identity.776 

Moreover, male police officers are not the only ones who use excessive force against civilians. 

The cultural mindset of unquestioned authority and institutional racism that is found in many 

 

through “dozens of reform measures,” including frequent audits. See, e.g., Joel Rubin, “Federal Judge Lifts LAPD 

Consent Decree,” Los Angeles Times, May 16, 2013, http://articles.latimes.com/2013/may/16/local/la-me-lapdconsent-decree-20130517. 

767 David Griffith, “De-Escalation Training: Learning to Back Off,” Police: The Law Enforcement Magazine, March 

2, 2016, http://www.policemag.com/channel/careers-training/articles/2016/03/de-escalation-training-learning-toback-off.aspx. 

768 Dean Lusher and Gary Robins, “Hegemonic and Other Masculinities in Local Social Contexts,” Men and 

Masculinities, vol. 11, no. 4 (2009). 

769 Miller and Bonistall interviewed female police officers and found that two-thirds of the women reported 

discrimination from peers and supervisors within the police department and by citizens. See Susan Miller and Emily 

Bonistall, “Gender and Policing: Critical Issues and Analysis” in Routledge Handbook of Critical Criminology, eds. 

Walter DeKeserdey and Molly Dragiewicz (New York: Routledge, 2012), at 316-28. 

770 Angela Harris, Gender, Violence, Race, and Criminal Justice, 52 STAN. L. REVIEW. 777, 793, 797 (2000). 

771 Id. 

772 Cooper, “Who’s The Man?”: Masculinities Studies, Terry Stops, and Police Training, supra note 759. 

773 Id. 

774 Id. 

775 Id. 

776 Id.; see also Richardson and Goff, Interrogating Racial Violence, supra note 638. 
124 Police Use of Force 

police departments also leads some female officers777 to behave in aggressive ways that are 

traditionally coded as masculine (e.g., being physically violent).778 For instance, Redditt Hudson, 

a former St. Louis police officer who now works for the National Coalition of Law Enforcement 

for Justice, Reform, and Accountability recounts being a new officer on duty with a white female 

officer who physically assaulted a young black man: 

My partner accused him of harboring a suspect. He denied it. He said that this was 

his family’s home and he was home alone. My partner then forced the door the rest 

of the way open, grabbed him by his throat, and snatched him out of the house onto 

the front porch. She took him to the ledge of the porch and, still holding him by the 

throat, punched him hard in the face and in the groin. My partner that day snatched 

an 18-year-old kid off crutches and assaulted him, simply for stating the fact that 

he was home alone . . . 779 

Research also clearly shows that hypermasculinity is in many ways encouraged and reinforced in 

police departments through written materials, academy training, and officer socialization.780

Therefore, these physically aggressive and hypermasculine traits are institutionalized throughout 

departments and many officers (especially among the rank and file) see themselves as the “brave 

and aggressive soldier who has mastered the art of violence.”781 

How De-escalation Training May Work as a Component of Reform: 

An example of how de-escalation techniques can be effective, but run counter to more traditional 

training methods, came out of a 2018 case in West Virginia. There, an officer responded to a 

domestic disturbance call and found a suspect with a handgun (that was later found to be 

unloaded).782 Officer Stephen Mader said that when he arrived the man looked “visibly distraught” 

but did not seem threatening, so he attempted to de-escalate the situation and get him to drop his 

 

777 According to the most current demographic data from the Bureau of Justice Statistics, about 1 in 8 local officers 

is a woman, including about 1 in 10 first-line supervisors. See Reaves, Local police departments, 2013: Personnel, 

policies, and practices, supra note 68. 

778 See e.g., Redditt Hudson, “I’m a black ex-cop, and this is the real truth about race and policing,” Vox, July 7, 

2016, https://www.vox.com/2015/5/28/8661977/race-police-officer. 

779 Ibid. 

780 Michael Aiello, “Policing the masculine frontier: Cultural criminological analysis of the gendered performance of 

policing,” Crime, Media, Culture: An International Journal, vol. 10, no. 1 (2014); Jennifer Hunt, “The Development 

and Rapport Through Negotiation of Gender in Field Work Among Police,” Human Development, vol. 43, no. 4 

(1984); James Messerschmidt, Masculinities and Crime: Critique and Reconceptualization of Theory, (Lanham: 

Rowan & Littlefield, 1993); Richardson and Goff, Interrogating Racial Violence, supra note 638. 

781 Hunt, “The Development and Rapport Through Negotiation of Gender in Field Work Among Police,” supra note 

780. 

782 Amy Wang and Kristine Phillips, “‘Just shoot me,’ an armed man told a cop. The officer didn’t—and was fired, 

his lawsuit claimed,” Washington Post, Feb. 12, 2018, https://www.washingtonpost.com/news/postnation/wp/2018/02/12/an-officer-who-was-fired-after-refusing-to-shoot-an-armed-man-just-won-175000-in-asettlement/?utm_term=.048a061ea811. 
Changing Law Enforcement Behavior 125 

gun.783 However, when two other officers arrived on the scene, they immediately shot and killed 

the man. A state investigation found that the officers’ actions were justified, and Mader was fired 

a month later for “apparent difficulties in critical incident reasoning” and “failing to meet 

probationary standards of an officer.”784 Mader sued the police department and was awarded a 

$175,000 settlement. The lead counsel in the lawsuit, Timothy O’Brien stated that: 

No police officer should ever lose their job—or have their name dragged through 

the mud—for choosing to talk to, rather than shoot, a fellow citizen. His decision 

to attempt to de-escalate the situation should have been praised, not punished.785 

Joseph Cohen, executive director of the ACLU-West Virginia, stated that: 

We need to give law enforcement officers tools to effectively serve their 

communities. That means we need to invest in de-escalation training, implicit bias 

training and crisis intervention training. Hopefully the resolution of this lawsuit will 

send a message to the City of Weirton and police departments across the country 

that our communities deserve thoughtful, compassionate, transparent law 

enforcement.786

While some departments have emphasized de-escalation techniques in their trainings, others have 

cited financial barriers to implementing these strategies. Trainers nationwide argue that the major 

barrier is the lack of available funding for this training.787 Trainers also point out that police 

academies have always trained officers in de-escalation techniques, but there has been less 

emphasis on the method for the past 20 years. Rather, many police academies spent time training 

officers how to fight the “war on crime” and highlighted aggressive policing policies, such as 

“broken-window” strategies to deal with crime.788 Police academies have instead continued to 

emphasize “military-style exercises” with a significant amount of time spent on drills, formation, 

and saluting.789 Data from a PERF survey regarding the training regimens of 291 police agencies 

found that on average new officers received 58 hours of firearms training, 49 hours of defensive 

tactical training, but only 8 hours of de-escalation training.790 

 

783 Ibid. 

784 Ibid. 

785 Amir Vera, “An officer was fired after he chose not to shoot a distraught suspect. Now he’s getting a $175,000 

settlement,” CNN, Feb. 13, 2018, https://www.cnn.com/2018/02/12/us/west-virginia-officer-lawsuit-settlementtrnd/index.html. 

786 Ibid. 

787 Griffith, “De-Escalation Training: Learning to Back Off,” supra note 767. 

788 Williams, “Long Taught to Use Force, Police Warily Learn to De-escalate,” supra note 729. 

789 Ibid. 

790 Police Executive Research Forum, Re-Engineering Training on Police Use of Force, supra note 309 at 11. 
126 Police Use of Force 

Other departments have cited concerns that the extra training pulls officers out of the field and 

may further strain patrol shifts.791 Skeptics also argue that police use of force is a bigger issue than 

just implementing new training methods.792 To address the issue of excessive force requires 

changing entrenched ideas about what an officer’s job entails.793 For instance, as a part of their 

consent decree with the Justice Department, the Seattle Police Department had to change their 

training and use-of-force guidelines, which angered many veteran officers. Some filed lawsuits 

challenging the new use-of-force guidelines imposed by the Justice Department, while other 

officers abruptly retired.794 

A Justice Department report, Critical Issues in Policing, states that officers should not be blamed 

for using force in the ways they have been trained to use it.795 The report states that the entire 

policing profession needs to overhaul its practices in use of force, starting with implementing 

improved policies, supervision, and accountability measures.796 In addition, reforms are needed to 

strengthen and reinforce training that increases officers’ options, skills, and alternative resources, 

particularly in situations where a suspect is behaving erratically or threatening, but does not have 

a firearm. The DOJ stated that, “When we do these things, both our officers and our communities 

will be safer, and the foundation for true community policing will be stronger.”797

Mental Health and Disability Training 

Another area where training may be needed is with regard to interacting with persons with mental 

health needs or other disabilities. In 2017, the Washington Post reported that approximately 24 

percent of people killed by police exhibited signs of mental illness (236 of 987). This percentage 

maintained the numbers from the prior two years: in 2016, 242 of 963 people killed by police 

exhibited signs of mental illness, and in 2015, 257 of 995.798 Many of these incidents involved 

officers who received no training in dealing with individuals with mental health challenges.799 In 

2016, the Ruderman Family Foundation released a report that found individuals with disabilities 

 

791 Kevin Rector, “Baltimore Police doubling in-service training requirements for officers, commissioner says,” 

Baltimore Sun, Jan. 10, 2017, http://www.baltimoresun.com/news/maryland/crime/bs-md-ci-police-service-training20170110-story.html. 

792 Juleyka Lantigua-Williams, “How Much Can Better Training Do to Improve Policing?” The Atlantic, July 13, 

2016, https://www.theatlantic.com/politics/archive/2016/07/police-training/490556/. 

793 Williams, “Long Taught to Use Force, Police Warily Learn to De-escalate,” supra note 729; Matt Apuzzo, 

“Police Rethink Long Tradition on Using Force,” New York Times, May 4, 2015, 

https://www.nytimes.com/2015/05/05/us/police-start-to-reconsider-longstanding-rules-on-using-force.html. 

794 Williams, “Long Taught to Use Force, Police Warily Learn to De-escalate,” supra note 729. 

795 U.S. Dep’t of Justice, Guide to Critical Issues in Policing, supra note 746. 

796 Ibid. 

797 Ibid. at 3. 

798 Washington Post, “Police Shootings Database,” https://www.washingtonpost.com/graphics/national/policeshootings/ (last accessed Nov. 3, 2018). 

799 Lowery, et al., “Distraught People, Deadly Results,” supra note 263. 
Changing Law Enforcement Behavior 127 

make up one-third to one-half of all people killed by police.800 At a 2017 briefing of the 

Commission’s Maine State Advisory Committee, Sheriff Darrell Crandall of Aroostook County, 

Maine testified to the challenge that mental illness can pose in terms of safety for both officers and 

civilians. He stated that: 

The most serious and potentially dangerous of encounters for all involved are law 

enforcement responses to those individuals with severe and persistent mental illness 

who are in crisis or psychotic.801 

In an attempt to solve this problem, The Task Force,802 as well as Talila Lewis of Helping Educate 

to Advance the Rights of the Deaf,803 and Richard Davis of The Arc,804 both of whom provided 

expert testimony at the Commission’s briefing, recommend mandatory crisis intervention training 

(CIT). Jenna Mehnert, Executive Director of National Alliance on Mental Illness-Maine, provided 

further testimony stating that: 

CIT is the gold standard enforced by the Bureau of Justice Assistance as well as the 

International Association of Chiefs of Police, to really say if we’re going to equip 

officers with a basic understanding of some skills of when it comes to interacting 

with a person with mental illness . . . The intent behind CIT is a team to build the 

bridge between the mental health community and the law enforcement community 

so when the training is gone, the people still know each other and can 

communicate.805 

In short, crisis intervention training stresses verbal intervention and other de-escalation techniques. 

Research shows that when implemented properly, successful completion of crisis intervention 

training greatly improves police officers’ interactions with people suffering from mental health 

needs.806 Many refer to the “Memphis Model” of crisis intervention training as a standard for these 

programs. This model trains law enforcement officers how to recognize someone who may have a 

mental illness, how to de-escalate the situation, and how to safely maintain enough space until 

 

800 David Perry and Lawrence Carter-Long, The Ruderman White Paper on Media Coverage of Law Enforcement 

Use of Force and Disability, Ruderman Family Foundation, 2016 at 1, http://rudermanfoundation.org/wpcontent/uploads/2017/08/MediaStudy-PoliceDisability_final-final.pdf. 

801 Darrell Crandall, Sheriff of Aroostook County, Maine Hearing Transcript at 61-62. 

802 The President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century 

Policing, supra note 9. 

803 See Lewis, Briefing Transcript at 19-20, 22. 

804 See Davis, Briefing Transcript at 25-26. 

805 Jenna Mehnert, National Alliance on Mental Illness-Maine, Maine Hearing Transcript at 52-54. 

806 Kelly E. Canada, Beth Angell, and Amy C. Watson, “Crisis Intervention Teams in Chicago: Successes on the 

Ground,” Journal of Police Crisis Negotiations, vol. 10, no. 1-2 (2010), 86-100, 

https://www.tandfonline.com/doi/abs/10.1080/15332581003792070. Dr. Randolph DuPont, Chair and Professor of 

Criminology at University of Memphis, found that officers who had contact with these individuals felt more 

comfortable with them, and hospital mental health staff who participated with the officers had more positive views 

of law enforcement. 
128 Police Use of Force 

mental health experts arrive.807 Crisis intervention training can also teach officers how to get an 

individual mental health aid, thus avoiding possible arrest and incarceration.808 In 2016, there were 

approximately 2,800 crisis intervention training programs nationwide, meaning that only about 15 

percent of police jurisdictions nationally have CIT programs.809

Best practice research suggests that successful crisis intervention training programs for reducing 

police-related injuries among people with disabilities have four key elements: 

1. Educating officers on the various mental health diagnoses and co-occurring disorders, with 

an emphasis on their medical origins. 

2. Distinguishing between behavior that might be unconventional or not related to a disability 

from situations where the police should intervene and assist the individual in getting to a 

treatment setting. 

3. Actively uses scenario-based methodology to teach officers the skills of how to de-escalate 

individuals in crisis. 

4. Collaborating with mental health providers, individuals with mental health disabilities, and 

their family members to help officers become knowledgeable about and have access to 

community crisis and mental health resources. 810

At the Commission’s briefing, Talila Lewis advocated for national standards implemented through 

training for law enforcement agencies that focus exclusively on individuals with disabilities.811

Lewis suggests applying the standards set forth by the Americans with Disabilities Act (ADA)812

to arrests and detentions to protect the civil rights and well-being of our nation’s disabled 

population.813 She stated that the ADA and federal disability rights laws require 

police departments to take appropriate steps to guarantee that people with 

disabilities have equal access to programs, activities, and services. It’s an 

affirmative obligation that includes providing reasonable accommodations and 

modification and adequate training for police officers working with the [] 

population . . . All police departments should be required to adopt general orders 

for safe and nondiscriminatory interactions with people with disabilities.814 

 

807 Gallagher, et al., eds, The State of Policing in the United States, Volume 1, supra note 645. 

808 Liza Lucas, “Changing the way police responds to mental illness,” CNN, Sept. 6, 2016, 

http://www.cnn.com/2015/07/06/health/police-mental-health-training/. 

809 Ibid. 

810 Pamila Lew, Jung Pham, Leslie Morrison, An Ounce of Prevention: Law Enforcement Training and Mental 

Health Crisis Intervention, Disability Rights California, 2014, at 39, 

https://www.disabilityrightsca.org/system/files?file=file-attachments/CM5101.pdf. 

811 Lewis, Briefing Transcript at 17-18. 

812 Americans with Disabilities Act of 1990 (ADA), Pub. L. No. 101–336, 104 Stat. 327 (codified at 42 U.S.C. 

§ 12101 et seq.). 

813 Lewis, Briefing Transcript at 19-20. 

814 Ibid. 
Changing Law Enforcement Behavior 129 

Currently, most departments spend very little time training officers on these issues.815 For instance, 

in the majority of states, officers are only required to have 8 hours or less of mental health 

training.816 According to a 2015 PERF survey, eight hours was the average amount of mental 

health training hours new recruits received compared to the 58 hours on firearms training.817

However, many departments have been increasing their CIT training requirements and 

implementing the 40 hours of training that the Memphis Model recommends.818 For instance, at 

the Commission’s Maine Advisory Committee meeting, Sheriff Darrell Crandall stated that: 

I’m proud to say that 100 percent of my sworn personnel are trained by NAMI in 

their 40-hour CIT class . . . However, that is entirely voluntary on my part. In fact, 

my command staff and I chose to cover patrol duties for an entire week so we could 

get all of our deputy sheriffs trained at once without bankrupting the county . . . 

And CIT, I will tell you, [] has helped greatly with interdisciplinary coordination 

with mental health crisis workers in our area.819 

Some agencies are also actively working to help law enforcement institute better training. 

Grande Lum, previous director at the Justice Department’s Community Relations Service 

(CRS), told the Commission that the organization is 

developing a program for dealing with individuals with intellectual and 

developmental disabilities . . . [that] will enhance law enforcement’s ability to 

recognize nonthreatening behaviors from those with disabilities and help prevent 

tragedies like the death of Ethan Saylor, a 26-year-old Maryland man with Down 

syndrome who died while being restrained by police. The incident was a callous 

case. People with cognitive disabilities are increasingly being secluded in 

communities and no longer confined to institutions. The world is changing and our 

law enforcement must be better equipped and trained to serve its community 

members.820

 

815 Curtis Ramsey-Lucas, “Improving Police Interactions with People with Disabilities,” American Association of 

People with Disabilities, July 22, 2016, http://www.aapd.com/improving-police-interactions-with-people-withdisabilities/; Lewis, Briefing Transcript at 19-22; Police Executive Research Forum, Re-Engineering Training on 

Police Use of Force, supra note 309. 

816 Megan Pauly, “How Police Officers Are (or Aren’t) Being Trained in Mental Health,” The Atlantic, Oct. 11, 

2013, https://www.theatlantic.com/health/archive/2013/10/how-police-officers-are-or-aren-t-trained-in-mentalhealth/280485/. 

817 Police Executive Research Forum, Re-Engineering Training on Police Use of Force, supra note 309. 

818 Aamer Madhami, “Police departments struggle to get cops mental health training,” USA Today, Oct. 2, 2016, 

https://www.usatoday.com/story/news/nation/2016/10/02/police-departments-struggle-cops-mental-healthtraining/91297538/; Amy Watson and Anjali Fulambarker, “The Crisis Intervention Team Model of Police 

Response to Mental Health Crises: A Primer for Mental Health Practitioners,” Best Practice Mental Health, vol. 8, 

no. 2 (2012). 

819 Crandall, Maine Hearing Transcript at 67. 

820 Grande Lum, U.S. Dep’t of Justice, Community Relations Service, Briefing Transcript at 253-54. 
130 Police Use of Force 

Both Lewis and Davis recommended increased training for all law enforcement personnel that 

focuses on developing safe ways for police to interact with persons with disabilities.821 Davis 

demonstrated three main challenges to this problem as identified by the National Center on 

Criminal Justice and Disability: (1) inconsistency in training; (2) disparity in training content (such 

as having considerably more law enforcement training on mental illness than on 

intellectual/developmental disabilities); and (3) high rates of victimization.822 Lewis offers other 

recommendations, such as collaborating with mental health professionals, the physical 

containment of the individuals from a distance, and patience.823 

In fact, some of these recommendations that have been implemented are getting positive results. 

According to Jason Madore, Maine State Police Sergeant and Commander of Maine State Police 

Crisis Negotiation Team, their mission is to 

persuade the person or persons in crisis to change their current direction in an effort 

to influence a safe resolution. Our primary objective is to preserve life and to 

mitigate the risk to our tactical assets and the general public[.]824 

Maine State Police achieve this mission by utilizing 

[d]e-escalation techniques such as using active listening skills, tone of voice, 

content, nonverbal communication, and equipment . . . Our overall strategy is to 

establish communication with a person in crisis, convey a sincere and nonthreatening demeanor, build rapport with a person over time, use active listening 

skills to allow the person to tell their story. After trust has been developed, influence 

the person until their behavior has been modified.825 

Implementing these tactics not only help to de-escalate a possible dangerous situation with 

a person who is having a mental or emotional health crisis, but also helps officers to address 

possible mental health challenges in the future. 

Community advocates and police officials agree that there needs to be more community services 

available to help prevent the statistics showing the disproportionate policing of persons with 

mental health needs or persons with disabilities from continuing.826 But as many officers point out, 

 

821 Lewis, Briefing Transcript at 20; Davis, Briefing Transcript at 24-25. 

822 Police Executive Research Forum, Re-Engineering Training on Police Use of Force, supra note 309. 

823 Ibid. 

824 Jason Madore, Maine State Police Sergeant and Commander of Maine State Police Crisis Negotiation Team, 

Maine Hearing Transcript at 81. 

825 Ibid. at 82-85. 

826 Police Executive Research Forum, Critical Issues in Policing Series: Defining Moments for Police Chiefs, supra

note 694. 
Changing Law Enforcement Behavior 131 

they are not mental health experts.827 Sam Cochran, a retired police officer and one of the 

coordinators for Memphis’ crisis intervention program, asserts that for training to be successful, 

“law enforcement must have partnerships with and access to local mental health agencies . . . It’s 

a community program, not just a police program.”828 In hope of building better relationships, some 

law enforcement actively work with community groups. For example, the Maine State Police 

partners closely with National Alliance on Mental Illness’ (NAMI) Maine chapter and other county 

intervention facilities, and also work with Togus, Virginia and receive training on Post-Traumatic 

Stress Disorder (PTSD) issues, in order to help veterans who are in crisis.829 

While there are few national data-gathering efforts on successful encounters between people in a 

mental health or behavioral crisis and police officers, studies suggest that crisis intervention 

training is valuable.830 Crisis intervention-trained officers reported that their programs are “highly 

effective in meeting the needs of mentally ill people in crisis, keeping mentally ill people out of 

jail, minimizing the amount of time officers spend on these calls, and maintaining community 

safety” compared to those who had not received crisis intervention training.831

All of the above types of training are separately analyzed, but more research is needed to see how 

they operate in tandem with each other, and as part of a more comprehensive, holistic approach of 

community policing. While research on each of these components is still in its nascent stages, 

some show promising preliminary results. 

Building Community Trust 

The Commission also reviewed the data and research on the overarching issue of needing to build 

trust between police and the communities they serve. Especially after a fatal shooting, lack of trust 

is one of the central issues that arises in debates about police use of force. At the federal level, one 

of the ways to address this concern was the creation of a program known as the “Collaborative 

Reform Initiative.”832 This initiative was established for police departments to voluntarily sign up 

 

827 Pauly, “How Police Officers Are (or Aren’t) Trained in Mental Health,” supra note 816; Madhani, “Police 

departments struggle to get cops mental health training,” supra note 818. 

828 Lucas, “Changing the way police responds to mental illness,” supra note 808. 

829 Madore, Maine Hearing Transcript at 85. 

830 Amanda Brown Cross, Edward Mulvey, Carol Schubert, Patricia Griffin, Sarah Filone, Katy WinckworthPrejsnar, David DeMatteo, and Kirk Heilburn, “An Agenda for Advancing Research on Crisis Intervention Teams 

for Mental Health Emergencies,” Psychiatric Services, vol. 65, no. 4 (2014); Melissa Reuland, Matthew 

Schwarzfeld, Laura Draper, Law Enforcement Responses to People with Mental Illnesses: A Guide to ResearchInformed Policy and Practice, Council of State Governments Justice Center, 2009. 

831 Randy Borum, Martha Williams Deane, Henry J. Steadman, and Joseph Morrissey, “Police Perspectives on 

Responding to Mentally Ill People in Crisis: Perceptions of Program Effectiveness,” Behavioral Sciences and the 

Law, vol. 16 (1998) at 403, 

http://scholarcommons.usf.edu/cgi/viewcontent.cgi?article=1567&context=mhlp_facpub. 

832 U.S. Dep’t of Justice, Community Oriented Policing Services, Collaborative Reform Initiative for Technical 

Assistance, 2016, https://cops.usdoj.gov/pdf/technical_assistance.pdf. 
132 Police Use of Force 

to work with the Justice Department’s COPS office to help reform police departments and begin 

building trust between communities and law enforcement.833 For instance, in 2011 COPS began 

working with the Las Vegas Metropolitan Police Department (LVMPD) to provide the department 

a five-year analysis of fatal police shootings.834 Since then, the police department has made 

considerable changes to its policies, tactics, and training through this initiative. Clark County 

Sheriff Joseph Lombardo told the Las Vegas Sun, “[o]ur efforts are paying off.”835 And a fact sheet 

released by the COPS office showed that in 2013, the LVMPD had successfully implemented over 

95 percent of the recommendations the office had identified in the report.836 

On September 15, 2017, Attorney General Jeff Sessions announced significant changes to the 

initiative. In a press release he stated that: 

Changes to this program will fulfill my commitment to respect local control and 

accountability . . . This is a course correction to ensure that resources go to agencies 

that require assistance rather than expensive wide-ranging investigative 

assessments that go beyond the scope of technical assistance and support.837 

This directive from the Justice department was met with criticism by some advocates, congress 

members, and police officials. Kanya Bennett, ACLU legislative counsel, stated that “to end a 

program that provides resources to improve police-community relations as we know it is truly 

appalling.”838 Police officials in several cities also expressed their disappointment with the sudden 

withdrawal of DOJ support.839 In North Charleston, South Carolina (where the fatal shooting of 

Walter Scott brought national attention to the police force), the vice-chair of the police advisory 

commission said they were “counting on” the Collaborative Reform recommendations and are 

now “sitting here twiddling our thumbs and not moving the ball forward in the right direction.”840

 

833 Ibid. 

834 Las Vegas Metropolitan Police Dep’t, Office of Internal Oversight, Use of Force Statistical Analysis 2011-2015: 

Deadly and Non-deadly Use of Force, at 4, https://www.lvmpd.com/enus/InternalOversightConstitutionalPolicing/Documents/Use-of-Force-Statistical-Analysis_2011-2015.pdf. 

835 Ricardo Torres-Cortez, “Feds praise Metro on use-of-force reforms as police shootings plummet,” Las Vegas 

Sun, Jan. 19, 2017, https://lasvegassun.com/news/2017/jan/19/feds-praise-metro-police-transparency-use-of-force/. 

836 U.S. Dep’t of Justice, Community Oriented Policing Services, Collaborative Reform Initiative for Technical 

Assistance, supra note 832. 

837 U.S. Dep’t of Justice, Office of Public Affairs, “Department of Justice Announces Changes to Collaborative 

Reform Initiative,” Sept. 15, 2017, https://www.justice.gov/opa/pr/department-justice-announces-changescollaborative-reform-initiative. 

838 Mary Kay Mallonee and Eli Watkins, “DOJ Scaling back program to reform police departments,” CNN, Sept. 15, 

2017, https://www.cnn.com/2017/09/15/politics/doj-police-program/index.html. 

839 Chiraag Bains, “When Backing the Blue Backfires,” Marshall Project, Sept. 20, 2017, 

https://www.themarshallproject.org/2017/09/20/when-backing-the-blue-backfires. 

840 Andrew Knapp, “As Michael Slager sentencing nears, demise of North Charleston police review deals blow to 

reform effort,” The Post and Courier, Sept. 16, 2017, http://www.postandcourier.com/news/as-michael-slagersentencing-nears-demise-of-north-charleston-police/article_ca264d16-98b6-11e7-a700-f76ce6d98c30.html. 
Changing Law Enforcement Behavior 133 

One of the concerns raised by Attorney General Sessions’ new directive is that it could negatively 

affect community-policing relationships that have been working on establishing trust. It is well 

discussed in the literature that many residents in communities of color and poor communities, 

which are among the most highly targeted and surveilled, do not trust the police, nor do they 

believe police officers are there to protect them and their communities.841 However, most surveys 

have not focused on the perspectives of those who are most affected by “tough-on-crime” policies, 

and simultaneously are in the most need for increased public safety. More often, research on the 

perceptions of law enforcement tend to sample from the general population, which typically 

excludes those in disadvantaged neighborhoods.842 

An example of negative police experiences that affect the public safety for all civilians came from 

testimony of Barbara Johnson, president of the Minneapolis City Council, at the Commission’s 

Minnesota State Advisory Committee briefing in 2017. In her testimony she discussed this difficult 

relationship between civilians and law enforcement. Ms. Johnson shared a story of a woman in her 

district whose home had recently been shot at during a drive-by shooting. Ms. Johnson testified 

that despite being scared and concerned for the safety of her children, the woman was hesitant to 

go to the police, because when she was 13 years old a police officer accused her of a crime she did 

not commit, and due to that experience, she finds it difficult to trust police officers to this day.843 

The Urban Institute conducted a study to investigate how residents in disenfranchised communities 

felt about the police in six cities: Birmingham, Alabama; Fort Worth, Texas; Gary, Indiana; 

Minneapolis, Minnesota; Pittsburgh, Pennsylvania; and Stockton, California. Researchers 

unfortunately found that residents of low-income, high-crime areas tend to hold a negative view 

of law enforcement.844 They found that less than a third of residents believe that the police respect 

citizens’ rights, “treat people with dignity and respect,” or “make fair and impartial decisions in 

the cases they deal with.”845 Conversely, researchers also found that a majority of respondents said 

they respect the law and possessed a strong willingness to work with police officers to make their 

communities safer.846 Nearly three out of four (74.3 percent) participants agreed that laws should 

be strictly obeyed.847 A majority (70.8 percent) indicated that they were likely to report a crime, 

 

841 Kathleen McRae, Executive Director, ACLU of Delaware, Delaware Hearing Transcript at 136; Rod Brunson, 

Professor and Dean of the School of Criminal Justice, Rutgers University, Delaware Hearing Transcript at 93-96; 

Lawrence Livington, Reverend, Interdenominational Ministers Action Council, Delaware Hearing Transcript at 

159-60; Jen Fifield, “Can diverse police departments ease community tension?” PBS News Hour, Aug. 22, 2016, 

https://www.pbs.org/newshour/nation/can-diverse-police-departments-ease-community-tension; U.S. Dep’t of 

Justice, Importance of Police-Community Relationships and Resources for Further Reading, supra note 9; Michelle 

Fine, Nick Freudenberg, Yasser Payne, Tiffany Perkins, Kersha Smith, Katya Wanzer, “‘Anything Can Happen 

With Police Around’: Urban Youth Evaluate Strategies of Surveillance in Public Places,” Journal of Social Issues, 

vol. 59 (2003) at 141-58. 

842 La Vigne et al., How Do People in High-Crime, Low-Income Communities View the Police?, supra note 8, at 3. 

843 Barbara Johnson, President, Minneapolis City Council, Minnesota Hearing Transcript at 320; Minnesota 

Advisory Committee to the U.S. Commission on Civil Rights, Civil Rights and Policing Practices in Minnesota, 

2017, https://www.usccr.gov/pubs/2018/03-22-MN-Civil-Rights.pdf. 

844 La Vigne, et al. How Do People in High-Crime, Low-Income Communities View the Police?, supra note 8 at 3. 

845 Ibid. at 7. 

846 Ibid. at 13. 

847 Ibid. at 11. 
134 Police Use of Force 

report suspicious activity near their home (68.5 percent), and provide information to help find a 

suspect (63.5 percent) (see Chart 9 below). 

Chart 9: Positive Perceptions of Police by Residents 

Source: Urban analysis of surveys of residents in Birmingham, AL; Fort Worth, TX; 

Gary, IN; Minneapolis, MN; Pittsburgh, PA; and Stockton, CA, 

www.urban.org/sites/default/files/publication/88476/how_do_people_in_highcrime_view_the_police.pdf, chart created by USCCR staff. 

While only a small percentage believe that their city’s police departments abide by the principles 

of community policing, more than half were willing to attend a community meeting with police.848

But strikingly, few respondents reported feeling safe around police or found them trustworthy 

(37.8 percent, 30.1 percent, respectively).849 Further, less than half agreed or strongly agreed that 

police behave in legitimate ways. Only 27.8 percent agreed or strongly agreed that “police always 

behave according to the law.” And 32 percent believed that “police often arrest people for no good 

reason” (see Chart 10 below).850 

 

 

848 Ibid. at 13. 

849 Ibid. at 12. 

850 Ibid. at 8. 

63.50%

68.50%

70.80%

74.30%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Would help in an investigation

Likely to Report Suspicious Activity

Likely to Report Crime

Believes laws should be strictly obeyed

Positive Perceptions of Police
Changing Law Enforcement Behavior 135 

Chart 10: Negative Perceptions of Police by Residents 

Source: Urban analysis of surveys of residents in Birmingham, AL; Fort Worth, TX; 

Gary, IN; Minneapolis, MN; Pittsburgh, PA; and Stockton, CA, 

www.urban.org/sites/default/files/publication/88476/how_do_people_in_highcrime_view_the_police.pdf, chart created by USCCR staff.

Similarly, at the Commission’s Minnesota State Advisory Committee briefing, Ebony Ruhland, 

Assistant Professor of Criminology at the University of Cincinnati, testified that in her experience, 

communities 

want and often need a police presence . . . They often mention that in high crime 

areas, they can’t walk to the park. They don’t feel safe walking to the stores. So 

they want a police presence. What they don’t want is the tactics that the police are 

currently using.851 

These findings are significant for law enforcement. As Ben Bradford from the University of 

Oxford and Jonathan Jackson from the London School of Economics found, a strong relationship 

exists between police legitimacy and public safety.852 Moreover, the Urban Institute’s study 

showed that residents who hold higher perceptions of law enforcement and believe them to be 

trustworthy and fair are more likely to report crimes, serve as witnesses, and comply with the 

 

851 Ebony Ruhland, Assistant Professor, University of Cincinnati, Minnesota Hearing Transcript at 54; Minnesota 

Advisory Committee to the U.S. Commission on Civil Rights, Civil Rights and Policing Practices in Minnesota, 

supra note 843. 

852 Ben Bradford and Jonathan Jackson, “Cooperating with the Police: Social Control and the Reproduction of Police 

Legitimacy,” SSRN Electronic Journal, 2010, at 1-2, 

https://www.researchgate.net/publication/228223955_Cooperating_with_the_Police_Social_Control_and_the_Repr

oduction_of_Police_Legitimacy. 

38%

30%

27.80%

32%

0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Felt Safe Around Police

Found Police Trustworthy

Police Always Behave Lawfully

Police Unlawfully Arrest People

Negative Perceptions of Police
136 Police Use of Force 

law.853 Thus, this survey demonstrates that focusing on building trust and legitimacy between 

communities and law enforcement is essential to addressing the police use of force controversy. 

These findings suggest that the “ground may be more fertile than expected for repairing 

relationships between community members and the police.”854 Mark Temons, a member of the 

Peace Action Network of Lancaster, Pennsylvania stated that “the community shouldn’t feel like 

they’re being policed by an outside force, an unfamiliar force.”855 And the Lancaster Chief of 

Police, Jarrad Berkihiser agrees that: 

Our partnership with the community is important to us because it helps solve crime, 

it helps prevent crime and it builds trust and legitimacy with the community which 

is necessary if a community crisis occurs... [But the partnership] is like a successful 

marriage. Both parties have to work at it.856

 

853 La Vigne, et al. How Do People in High-Crime, Low-Income Communities View the Police?, supra note 8 at 13. 

854 Ibid. at 15. 

855 Tom Knapp, “Bridging the gap between police and community: Forum on Saturday aims to open lines of 

communication,” Lancaster Online, April 13, 2018, https://lancasteronline.com/news/local/bridging-the-gapbetween-police-and-community-forum-on-saturday/article_c955f864-3e92-11e8-a8ba-df491b952a25.html. 

856 Ibid. 
Findings and Recommendations 137 

CHAPTER 4: FINDINGS AND RECOMMENDATIONS 

Findings 

Community Trust 

1. Tensions in relations between communities and the police have passed breaking points in 

many American communities, rendering both community members and the police officers 

sworn to serve them less safe and subject to a fraying social fabric. 

2. Police officers are vitally important to the communities they serve. Police and the public 

share the common goal of keeping communities safe while working to eliminate excessive 

uses of force. 

3. Police officers have the difficult and admirable job of providing crucial services to the 

communities they protect and serve. Their job sometimes puts them in harm’s way and 

may require the use of force. Accordingly, police officers must operate with the highest 

standards of professionalism and accountability. 

4. All of us live subject to police enforcement practices and therefore benefit from an 

accountable, well-trained police force implementing effective, constitutionally sound 

policing practices. 

5. Use of force is a predictable component of policing and its potential underlies every policecitizen interaction; however, avoiding the use of force should be a goal for each interaction. 

6. Every community resident should be able to live, work, and travel confident in an 

expectation that interactions with police officers will be fair, operate consistent with 

constitutional norms, and be guided by public safety free from bias or discrimination. 

Unfortunately, today, too many communities are not confident in that expectation and do 

not trust fair police-community interactions. Communities have demanded reforms to 

foster better community-police relations and to prevent unjustified and excessive police 

uses of force. 

7. Perceived and actual lack of accountability for officers who use excessive force and lack 

of transparency regarding decisions on how officers should be held accountable erode 

public trust in the police and thereby work to make communities less safe. 

8. Maximizing public confidence and trust in police is essential for public safety as effective 

policing depends on community co-operation. 

9. Proliferating perceptions that police operate based on bias render communities as well as 

police officers less safe by discouraging trust in the police and responsiveness to police 

activities. 

Data 

o Accurate and comprehensive data regarding police uses of force is generally not available 

to police departments or the American public. No comprehensive national database exists 

that captures rates of police use of force. 

Congress has required the United States Department of Justice to collect data on police use of force 

and publish an annual report from the data, but has not required local departments to report this 
138 Police Use of Force 

data to the Department of Justice. The majority of the more than 17,000 police departments in the 

United States only selectively report data and some do not report at all. 

There is no national repository of information documenting prior disciplinary proceedings 

conducted against officers by police departments. 

The best available evidence reflects high rates of use of force nationally, and increased likelihood 

of police use of force against people of color, people with disabilities, LGBT people, people with 

mental health concerns, people with low incomes, and those at the intersections of these groups. 

Training 

o Evidence-based practices have been employed in some jurisdictions to reduce incidents of 

use of force and can be adopted more broadly. 

o Lack of training and lack of funding for training leave officers and the public at risk. 

Critical training areas include tactical training, de-escalation techniques, understanding 

cultural differences and anti-bias mechanisms, as well as strategies for encounters with 

individuals with physical and mental disabilities. 

o Preventable deaths have occurred because officers have not been trained in or did not 

initiate tactics that create time and space for decision-making that could have reduced force 

used. 

Accountability 

o Repeated and highly publicized incidents of police use of force against persons of color 

and people with disabilities, combined with a lack of accurate data, lack of transparency 

about policies and practices in place governing use of force, and lack of accountability for 

noncompliance foster a perception that police use of force in communities of color and the 

disability community is unchecked, unlawful and unsafe. 

o Many departments do not have early warning procedures in place to alert supervisors 

and/or command staff of potential personnel issues so corrective action can be 

implemented. 

o Internal procedures in some departments, sometimes required by state law, inhibit 

accountability for officers who have used excessive force. These procedures include not 

promptly taking officer statements after a critical incident, not allowing the initiation of 

disciplinary proceedings after a short period of time has passed, and allowing officers to 

view video footage of an incident before making a report on the incident. 

o External accountability through community oversight or through the courts is not 

consistently available and where in use has not been consistently effective to address 

incidents of excessive force and bring justice for victims. 

o Technological advances such as body-worn cameras adopted with the goal of increasing 

accountability have been deployed in some departments. These technological solutions 

have often been deployed without policies and enforcement ensuring they work to increase 

accountability in practice and address privacy concerns of recorded individuals. 

o Department of Justice engagement with police departments through police-requested 

assistance and at times enforcement and monitoring has proved beneficial to the police and 

their communities. Recommendations made by the Civil Rights Division, the Office of 
Findings and Recommendations 139 

Community Oriented Policing Services (COPS) and the Community Relations Services 

office (CRS) have led to police departments implementing policies and practices that 

uphold constitutional standards. Departments that have undergone DOJ investigation and 

made agreements for reform, and those who sought voluntary engagement, continue to see 

improved policies on use of force, better training of officers, and implementation of more 

advanced internal accountability and information systems. 

Recommendations 

o The Department of Justice should return to vigorous enforcement of constitutional 

policing, including pursuant to 42 U.S.C. § 14141 and use of consent decrees as necessary 

where constitutional policing standards are not being upheld. 

o The Department of Justice should robustly support local efforts to develop and institute 

constitutional policing practices. Such support should include reinstating the Office of 

Community Oriented Policing Services (COPS) and maintaining the Community Relations 

Services office (CRS) to focus on building community trust and reducing excessive uses 

of force in coordination with police departments. DOJ support also should include grant 

support as well as generation of federal guidance supporting development of effective 

training, policies, and internal accountability measures that promote expanded strategies 

and tactics that safeguard the lives of officers and citizens. 

o Congress should condition cities’ receipt of federal law enforcement funds on the cities’ 

collection and reporting to DOJ of data regarding police use of force practices, in a format 

that is aggregable and comparable nationally, which DOJ can then report to the American 

public. Congress should require DOJ to create and maintain a public, national database of 

police use of force incidents and appropriate funds sufficient to support the creation and 

maintenance of the database. 

o Congress should also require DOJ to release to the public twice each year the names of 

departments and jurisdictions that fail to report use of force information in the manner DOJ 

requires. The public release should be directed to the state Attorney General, City Council, 

County Commission, or other governing body overseeing the departments in the State and 

jurisdiction where the department administrative office resides, and DOJ should maintain 

the information on its website. 

o Congress should fund grants that support effective external police oversight through, for 

example, independent monitors or police commissions or community oversight. Congress 

should also fund grants for research regarding best practices for such oversight, to develop 

replicable models that communities could follow to ensure constitutionally sound policing 

in their jurisdictions. 

o Congress should fund grants, facilitated by the Department of Justice, to incentivize 

evidence-based best practices that, when employed, reduce incidents of excessive force. 

The following practices deserve serious consideration as policy makers pursue mechanisms 

to keep communities safer: 

 

a. Community Trust: 

Police departments should encourage officers to see themselves as guardians and protectors. 
140 Police Use of Force 

Departments should embrace a culture of safety by implementing review of use of force incidents 

to determine what improvement can be made and how such incidents can be prevented in the 

future. 

b. Training: 

Officers should be provided cultural competency and anti-bias training, including information 

about the history of discriminatory policing and implicit biases that affect all on an unconscious 

level. 

Officers should be trained on de-escalation tactics and alternatives to use of force. Tactical training 

should include strategies to create time and space, and distance, to reduce the likelihood that force 

will be necessary and should occur in realistic conditions appropriate to the department’s location. 

Departments should develop partnerships with state and local mental health agencies to develop 

crisis intervention trainings and to support the work of mental health organizations in the 

community. Legislatures should fund such efforts, and allow local departments to develop crisis 

intervention teams which are on duty 24/7 throughout the department’s jurisdiction for use with 

anyone in mental health crisis. Crisis intervention teams can also assist police when responding to 

domestic violence and other highly charged interactions. 

Officers should be specifically trained in how to interact with people with mental and physical 

disabilities who may be in crisis. Crisis intervention training should include communication, 

coordination, and containment to increase the likelihood that lethal force will not be necessary. 

Experts with disabilities should be involved in the training process. 

Officers should be trained on safe interactions with LGBTQ individuals and the history of biased 

policing against members of those communities. 

Department policies should make clear that citizens have a constitutional right to film the police 

from a distance that does not interfere with the officer performing her/his duty. Officers should be 

trained on safe interactions with members of the public who desire to film them. 

c. Accountability: 

Departments should implement early intervention systems to alert supervisors and command staff 

where warning signs of excessive use of force may exist. Possible actions taken should include 

training, reassignment and/or personnel discipline. 

Investigation and prosecution of use of force cases should be made as independent and public as 

possible. The agencies investigating and determining whether to move forward with prosecution 

should not have an ongoing relationship with the department. State-appointed independent 

prosecutors and independent investigators are preferable to local prosecutors and investigators. 

States should consider a permanent special independent investigator’s office with the authority to 

prosecute where appropriate in use of force cases. States could consider forming interstate 

agreements to investigate these cases to preserve the investigation’s independence. 
Findings and Recommendations 141 

Investigations of use of force should be subject to public disclosure. To this end, departments 

should not include nondisclosure agreements in civil settlements of use of force cases. Prosecutors 

should publicly explain charging or non-charging decisions in use of force cases. 

If a civilian review board is put in place to monitor police, its members should have real power 

over investigations, including subpoena power. All actions of the community board should be 

public. 

Courts and legislatures should require judges to preside over grand jury proceedings and open the 

records of these proceedings in police use of force cases to the public, in cases where the identity 

of the subject of the investigation is already public. Where the officer’s name is not public, the 

above records should be released with redactions shielding the identity of the officers involved. 

The list of records disclosed should include, but not be limited to, the list of all potential and actual 

witnesses, all testimony, affidavits, documentary and physical evidence presented or withheld 

from presentation, all police reports from all agencies involved, and all photos, images and video 

in possession of any agency or department concerning the incident. 

Policies that lead to the perception that there is a lack of accountability should be removed. Such 

provisions include a rule that officers do not have to make a statement until 48 hours or more after 

an incident or the use of a short personnel statute of limitations for disciplinary procedures. 

Departments should be conscious that such provisions have a tendency to reduce public trust in 

the police. The Department of Justice should encourage state and local jurisdictions to remove 

contract provisions, local policies, and provisions that: 

 Allow officers to wait 48 hours or more before being questioned after an incident. 

 Prevent investigators from pursuing other cases of misconduct revealed during an 

investigation. 

 Prohibit civilians from having the power to discipline, subpoena, or interrogate 

police officers. 

 Prevent officers from being investigated for an incident that happened 100 or more 

days prior to the discovery of the incident. 

Police departments should deploy body-worn cameras and voice recorders to capture interactions 

between police and citizens and should develop policies for their use. The DOJ should continue to 

collect model policies and make them available in an easily accessible database. Body-worn 

camera policies should address the following: 

 Clearly defined penalties should attach for the misuse of camera footage and 

violations of body-worn camera policies. 

 Officers should not be given any knowledge of the contents and should not be given 

the right to view footage before making a report of the incident. 

 The public should be allowed to obtain footage of use of force incidents after 

investigations are complete. 

 Body-worn camera policies should also address privacy concerns raised by the 

large amounts of data recorded by those cameras containing potentially sensitive 
142 Police Use of Force 

information deserving of individual policies. These policies should include but not 

be limited to footage not depicting use of force, detention, an incident subject to 

complaint, or that has no evidentiary, exculpatory, or training value. 

d. Police Data 

Departments should provide aggregate information to the public regarding the numbers of 

allegations and type of use of force and what steps, if any, departments take to address use of force 

concerns when they arise. This data should be disaggregated by race, gender and disability status. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 143 

COMMISSIONERS’ STATEMENTS, REBUTTALS, AND 

SURREBUTTALS 

Statement of Chair Catherine E. Lhamon 

This report rightfully addresses a searingly persistent schism in American life, with actual and 

perceived police misconduct seeming to pit communities against the officers sworn to protect and 

serve them. The recommendations for forward progress are measured, appropriate, and urgent; our 

nation’s communities need their implementation. Most of all: I hope very much that the United 

States Department of Justice immediately reverses its dangerous course of refusal to use the tools 

available to it to drive critical reform of police practices.857 

I know, from direct experience, the difference federal oversight can make both to communities 

and to police. Close to 20 years ago, I represented community members as intervenors in the 

consent decree negotiated between the Los Angeles Police Department and the United States 

Department of Justice, addressing unconstitutional policing practices, including unlawful use of 

force, that had persisted, unabated, over more than four decades.858 My clients sought to participate 

in the case specifically because they, and I, had concern about whether an Administration change 

from President Clinton to President George W. Bush would negatively impact the fervor with 

which the Department of Justice might press for satisfaction of the negotiated terms of the consent 

decree. Then, as now, the incoming presidential administration had strongly signaled disdain for 

federal involvement in police reform.859 As the U.S. Court of Appeals for the Ninth Circuit 

 

857 Memorandum from the Office of the Att’y Gen. to Heads of Department Components and United States 

Attorneys (March 31, 2017), https://www.documentcloud.org/documents/3535148-Consentdecreebaltimore.html. 

See also U.S. Commission on Civil Rights, “U.S. Commission on Civil Rights Urges Department of Justice to Use 

All Available Tools to Work with Police Departments to Ensure Constitutional Policing,” April 24, 2017, 

https://www.usccr.gov/press/2017/Statement_04-24-2017-Policing.pdf; Sheryl Gay Stolberg and Eric Lichtblau, 

“Sweeping Federal Review Could Affect Consent Decrees Nationwide,” New York Times, April 3, 2017, 

https://www.nytimes.com/2017/04/03/us/justice-department-jeff-sessions-baltimore-police.html. 858 The transmittal letter from DOJ to the City of Los Angeles said: “‘As a result of our investigation, we have 

determined that the LAPD is engaging in a pattern or practice of excessive force, false arrests, and unreasonable 

searches and seizures in violation of the Fourth and Fourteenth Amendments to the Constitution.’” Erwin 

Chemerinsky, An Independent Analysis of the Los Angeles Police Department's Board of Inquiry Report on the 

Rampart Scandal, 34 LOY. L.A. L. REV. 545, 555 (2001) (quoting Letter from Bill Lann Lee, Acting Assistant 

Attorney General, Civil Rights Division, U.S. Dep’t of Justice, to James K. Hahn, Los Angeles City Attorney, 

Richard J. Riordan, Mayor of Los Angeles, Gerald L. Chaleff, President of the Los Angeles Board of Police 

Commissioners, and Bernard C. Parks, Police Chief of Los Angeles (May 8, 2000)). For a summary of the preceding 

four decades of calls for reform of the LAPD, see the opening brief we filed on appeal. Brief of Petitioner-Appellant 

at 3, 2001 WL 34091668, United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. Jun. 18, 2001). 859 United States v. City of Los Angeles, 288 F.3d 391, 403 (9th Cir. 2002) (noting that “President Bush . . . 

expressed opposition to consent decrees between the federal government and local law enforcement agencies on 

several occasions during his campaign.”). The Trump Administration has gone a step further, directing DOJ 

attorneys to reconsider all existing and contemplated consent decrees regarding police practices because, as Attorney 

General Sessions phrases it, “the individual misdeeds of bad actors should not impugn” police work generally. 
144 Police Use of Force 

charitably phrased it, my clients had “suffered from, and [were] likely to continue to suffer from, 

the unconstitutional police misconduct that forms the basis of the United States’ suit against the 

City defendants.”860 Given their direct experience of police use of force and unconstitutional 

conduct, my clients sought faithful and vigilant implementation of the terms of the consent decree 

negotiated between the United States Department of Justice and the City of Los Angeles on their 

behalf. After years of work, pursuant to the consent decree with the Bush Administration, the 

LAPD exited federal oversight in 2013, during the Obama Administration, when the LAPD had 

finally, after 40 preceding years of repeated calls for change, become a department transformed.861 

Through that experience, I had a front-row seat to the value of DOJ involvement, even when that 

involvement fell short of my—and my clients’—hoped for vigilance. The Department of Justice 

has a 24-year mandate from Congress, unavailable to any other entity, to address systemic patterns 

and practices of police abuses, protecting the nation’s citizens.862 The benefit of the Justice 

Department’s involvement is not merely speculative. As this report documents863 and my 

 

Stolberg and Lichtblau, “Sweeping Federal Review Could Affect Consent Decrees Nationwide,” supra note 857. 

See also Memorandum from the Office of the Att’y Gen., supra note 857. 860 City of Los Angeles, 288 F.3d at 397. 861 Joel Rubin, “Federal Judge Lifts LAPD Consent Decree,” Los Angeles Times, May 16, 2013, 

http://articles.latimes.com/2013/may/16/local/la-me-lapd-consent-decree-20130517. 862 42 U.S.C. § 14141 (transferred to 34 U.S.C. § 12601). 863 Report at notes 562-64 (“in Los Angeles, researchers found a marked decrease in crime rates and an increase in 

officer morale. Under the consent decree, the total number of use of force incidents declined by almost 30 percent”) 

(citing Christopher Stone, Todd Foglesong, and Christine Cole, Policing Los Angeles Under a Consent Decree: The 

Dynamics of Change at the LAPD, Criminal Justice Policy and Management, Harvard Kennedy School, 2009, at 6, 

33, 65, http://assets.lapdonline.org/assets/pdf/Harvard-LAPD%20Study.pdf). 

See also Chart 8: Federal Interventions from 2010—2016, at notes 537-38 (illustrating average reductions in police 

shootings in cities subjected to federal oversight compared with cities lacking such oversight). 
 Commissioners’ Statements, Rebuttals, and Surrebuttals 145 

experience in Los Angeles confirms, federal involvement combined with federal court oversight 

can function as an essential backstop against longstanding police harm, repairing community and 

police relations and allowing for constitutional policing to take hold and become the norm. Its 

absence, however, communicates too clearly that unauthorized police use of force, among other 

unconstitutional practices, can proliferate unabated, operating to the distinct detriment of 

Americans subject to harm. 

We don’t have to wonder what cost to American rights follows from their Department of Justice 

turning its back on a tool within its arsenal to protect their rights. In August 2018, ProPublica 

published a detailed investigation of what happened in Ville Platte, Louisiana when the Trump 

Administration DOJ declined to negotiate a consent decree consistent with the constitutional 

violations the Department of Justice had found at the end of the Obama Administration regarding 

police practices in this isolated community.864 Although the DOJ had found Ville Platte police to 

have unlawfully operated based on “a view of the law that had been wrong for more than half a 

century,” the tepid agreement it negotiated—without a consent decree or a federal judge to evaluate 

compliance—did not require corrective action.865 Americans deserve better. 

Because I have lived in a community whose police unlawfully preyed on its members, often on 

the basis of race and always against our constitutional norms; because I have participated in the 

hard work to transform broken police-community relations;866 and because I have monitored and 

pushed halting progress toward meaningful change, I know in my core that, even after having been 

deeply frayed, effective community and police interactions are possible, attainable, and, indeed, 

essential to healthily functioning communities. From that work with police agencies other than the 

LAPD, I also know significant gains can be made without federal intervention, with sheriffs and 

police departments committing and recommitting themselves to constitutional practices including 

nondiscrimination in the manner in which they protect and serve. Very often local communities, 

including their police agencies, can work together to ensure delivery of policing that is effective, 

safe, and nondiscriminatory. And when, as had been true in Los Angeles for longer than my 

lifetime to date, they cannot, those communities and our constitutional norms stand to benefit 

 

Source: Rob Arthur, “Jeff Sessions is walking away from the best way to reduce police shootings,” Vice News, Dec. 

18, 2017, https://news.vice.com/en_us/article/kznagw/jeff-sessions-is-walking-away-from-the-best-way-toreducepolice-shootings (utilizing DOJ data). 

864 Ian MacDougall, “How the Trump Administration Went Easy on Small-Town Police Abuses,” ProPublica, Aug. 

27, 2018, https://www.propublica.org/article/ville-platte-louisiana-police-consent-decree-trump-justice-department. 

In fact, the ProPublica piece notes that career staff in DOJ drafted a consent decree, consistent with the findings in 

the DOJ letter, but “[t]heir bosses rejected it.” Ibid. See also U.S. Dep’t of Justice, Civil Rights Division, 

Investigation of the Ville Platte Police Department and the Evangeline Parish Sheriff’s Office, 2016, 

https://www.justice.gov/opa/file/919436/download. 

865 Ibid. 866 In addition to the close to a decade of work on behalf of community intervenors in the LAPD consent decree, I 

litigated multiple other suits regarding racially biased policing, against both the LAPD and the Los Angeles County 

Sheriff’s Department in addition to entities in surrounding communities, resulting in important departmental reforms 

as well as dollar damages to redress my clients’ suffering. E.g., Gonzalez v. City of Los Angeles, No. SACV-00-507-

AHS (C.D. Cal. 2001); Brown v. Los Angeles County Sheriff’s Department (L.A. Sup. Ct. 2009) (approving settlement 

agreement); The Community Action League et al. v. Lancaster, No. 11-CV-4817-ODW-VBK (C.D. Cal Jan. 24, 2012) 

(approving settlement agreement). My experience investigating, litigating, and monitoring these and other policing 

cases informs the strength of my belief in the possibility of transformed practices as well as in the need for them. 
146 Police Use of Force 

significantly from federal intervention of the type that is dangerously absent in our present 

moment. I join my Commission colleagues in calling for practical reforms to stem the tide of 

perceived conflict between police officers and their communities, and to recommit this nation to 

the principles of fairness and equal treatment, including at the hands of police, that are core to 

democracy. 

 
 Commissioners’ Statements, Rebuttals, and Surrebuttals 147 

Statement of Vice Chair Patricia Timmons-Goodson 

Introduction 

Tamir Rice,867 Michael Brown, 868Alton Sterling,869 Philando Castile,870 Antwon Rose.871 These 

names and many others872 are familiar to us for the most tragic reason: they are African American 

citizens killed with deadly use of force by law enforcement in recent years. Many of these killings 

sparked unrest in their respective communities and across the country, leading to the prominence 

of groups such as Black Lives Matter.873

The police use of force cases ─ both deadly and not ─ led the Commission to embark upon a study 

on modern policing practices. The subject of the Commission’s Report is important for many 

reasons, not least of which is because police use of force affects so many African American 

families.874 A 2016 report by the Center for Policing Equity found that African Americans 

experience three times greater police use of force than white people.875 

While the force used by law enforcement in the performance of their duties affects everyone,876

excessive use of force appears to target communities of color, in particular. Thus, many Black 

people perceive that their lives are not valued during interactions with law enforcement. Whether 

the perception is accurate or not remains to be seen; the data is incomplete. “Without accurate data 

 

867 Two police officers fatally shot Rice on November 22, 2014. See NewsOne Staff, “47 Black Men And Boys 

Killed By Police,” NewsOne, July 14, 2018, https://newsone.com/playlist/black-men-youths-who-were-killed-bypolice/. 

868 A police officer fatally shot Brown on August 9, 2014. Ibid. 869 Two police officers fatally shot Sterling on July 5, 2016. Ibid. 870 A police officer fatally shot Castile on July 6, 2016. Ibid. 871 A police officer fatally shot Rose on June 19, 2018. Ibid. 872 Ibid. 873 In 2013, Black Lives Matter was founded by three people in response to the acquittal of Trayvon Martin’s killer, 

George Zimmerman. In 2014, it broadened its movement after the acquittal of Michael Brown’s shooter, Ferguson 

police officer Darren Wilson. The Black Lives Matter Global Network is “committed to struggling together and to 

imagining and creating a world free of anti-Blackness, where every Black person has the social, economic, and 

political power to thrive.” Black Lives Matter Global Network, “What We Believe,” 

https://blacklivesmatter.com/about/what-we-believe/ (last accessed Nov. 4, 2018). 874 I understand the topic of modern policing practices from multiple viewpoints. I am an African American woman 

who is a mother of two African American sons. I also served on the judiciary for 28 years. Thus, I have experienced 

interacting with African Americans who distrust police officers and the courts. I have seen just how the lack of trust 

on the part of members in a minority community impairs relationships with law enforcement. I have also seen how 

challenging it is for law enforcement to serve and protect communities that do not trust them. But, I have also had to 

instruct my sons about how to behave if they interact with police officers at a traffic stop because, as much as I 

respect law enforcement, my ultimate goal is for my sons to come home safely. 

875 Goff, et al., The Science of Justice: Race, Arrests, and Police Use of Force, supra note 12 (noting use of force 

includes Tasers, batons, canine use, pepper spray, officer’s hands or body, and gunshots). 

876 See Discussion and Sources cited therein at notes 3, U.S. Commission on Civil Rights, Police Use of Force: An 

Examination of Modern Policing Practices, 2018 [hereinafter Commission Report], (noting that “All citizens in 

every community in this country live subject to police enforcement practices and therefore benefit from effective, 

constitutionally sound police practices.”). 
148 Police Use of Force 

on police use of force, allegations by community members and actions by law enforcement not 

only sow distrust among communities and the police, making policing more dangerous, but also 

jeopardize public safety.”877 But, what cannot be denied is the essential role that trust plays in the 

“protect and serve” function performed by law enforcement. 

Competing Narratives 

Competing narratives operate when deadly use of force is applied against African American 

victims. On the one hand, video footage and newspaper reports clearly depict a police officer using 

deadly force against an unarmed African-American citizen. On the other hand, police officers 

either are not charged, or if charged, are not convicted for the killing. Consequently, a sense of 

confusion leads to a question of trust. Who can African Americans trust when their own narrative 

about excessive use of force is dismissed for a narrative that views the actions of most police 

officers as reasonable in the eyes of the law? 

African American Community Narrative 

Many in minority communities hold the narrative that law enforcement cannot be easily trusted 

and that justice for African Americans is often denied. This narrative is supported when video 

footage emerges that depicts police officers use unnecessary excessive force out of perceived fear 

that their own lives are in danger. For example, in the case of Alton Sterling, two Baton Rouge 

police officers tackled and shot him at close range because they believed he was reaching for a 

gun. But the video footage does not clearly depict Sterling reaching for a gun. Neither the Justice 

Department nor the Baton Rouge State Attorney charged the two officers because of insufficient 

evidence. The community was outraged that charges were not brought and distrust between the 

African American community and law enforcement continued. After the decision, Representative 

Cedric Richmond, who represents part of Baton Rouge, stated, “Trust between the Baton Rouge 

community and law enforcement has deeply eroded . . . We must all continue to work to bridge 

the divide between law enforcement and community. Until this is done, many young black men 

and women will be forced to fear any non-threatening action they take could be met with certain 

death.”878 Unfortunately, such distrust results in less public safety, less cooperation with police 

officers when serious crimes occur, and less outreach for protection and assistance.879 

Only in the clearest instances do minority communities perceive justice for victims of police use 

of force. For example, former South Carolina police officer Michael Slager was convicted of the 

shooting death of Walter Scott, an unarmed black man.880 Slager provided testimony that he and 

 

877 Commission Report at notes 2. 878 Mark Berman and Wesley Lowery, “Baton Rouge Police Officers Won’t Be Charged in Fatal Shooting of Alton 

Sterling,” Washington Post, March 27, 2018, https://www.washingtonpost.com/news/postnation/wp/2018/03/27/baton-rouge-police-officers-wont-be-charged-in-fatal-shooting-of-altonsterling/?utm_term=.4abcfdae09b5. 

879 Commission Report at notes 43 (noting Ezekiel Edwards’ written statement about the results of widespread 

distrust of the police). 

880 Blinder, “Michael Slager, Officer in Walter Scott Shooting Gets 20-Year Sentence,” supra note 184. 
 Commissioners’ Statements, Rebuttals, and Surrebuttals 149 

Scott struggled with a Taser after Scott ran away during a traffic stop, that Scott gained control of 

the Taser, and that he feared that Scott would use the Taser against him. Thus, Slager shot Scott in 

the back eight times. Fortunately, a bystander’s video footage told a different story. Scott was 17 

feet from Slager when he fired his gun, and subsequently, Slager placed his Taser beside Scott’s 

body to plant evidence to support his testimony. Slager’s testimony and the refuting footage leads 

one to wonder what the outcome would have been if the video footage did not exist. In other words, 

this is an extreme case because a police officer shot an unarmed victim in the back and, given the 

video footage, there was no reasonable way to believe that the victim attempted to harm the police 

officer. 

Law Enforcement Narrative 

However, in most other situations, the courts give law enforcement officers the benefit of the doubt 

and support their narrative: that almost any use of force is reasonable. Why is this so? Two U.S. 

Supreme Court cases defined the reasonableness standard for deadly use of force. In Tennessee v. 

Garner,

881 a Memphis police officer fatally shot an unarmed teenager for fleeing after a suspected 

burglary. The officer saw the victims face and hands and believed the victim was unarmed. The 

Court determined that the officer seized the victim by apprehending him with deadly use of force. 

Thus, the seizure was subject to the Fourth Amendment’s reasonableness requirement that 

guarantees all citizens the right “to be secure in their persons . . . against unreasonable seizures.” 

The Court opined: “. . . such force may not be used unless it is necessary to prevent the escape and 

the officer has probable cause to believe that the suspect poses a significant threat of death or 

serious physical injury to the officer or others.”882 Here, the Court found that the officer’s 

apprehension by deadly use of force violated the Fourth Amendment’s reasonableness requirement 

because the officer did not have probable cause to believe that the victim posed any physical danger 

to himself or others. 

In Graham v. Connor,

883 the Court made explicit what it implied in Tennessee v. Garner: excessive 

force by a police officer should be analyzed under the Fourth Amendment’s objective 

reasonableness standard. In this case, police officers injured884 a man when they used physical 

force during an investigatory stop. The officers believed the man was drunk, when, in fact, he was 

suffering from a diabetic reaction. The Court evaluated whether “the officers’ actions are 

‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard 

to their underlying intention or motivation.” The Court concluded that reasonableness must 

embody allowance for “split-second judgments- in circumstances that are, tense, uncertain, and 

rapidly evolving-about the amount of force that is necessary in a particular situation.”885

Given the diverging narratives between African Americans and law enforcement, African 

Americans often trust themselves and distrust law enforcement to create fair police interactions. 

 

881 471 U.S. 1 (1985). 882 Tennessee v. Garner, 471 U.S. 1, 3-4 (1985). 883 490 U.S. 386 (1989). 884 The man sustained a broken foot, cuts on his wrists, a bruised forehead, an injured shoulder, and a loud ringing in 

his right ear. Id. at 390. 885 Graham, 490 U.S. at 397. 
150 Police Use of Force 

Thus, Black people arm themselves with the knowledge that they must be physically selfcontrolled when interacting with law enforcement and must be prepared to record police 

interactions. Practically speaking, this begins with a conversation and ends with a cell phone. 

Solutions 

The Talk 

A unique conversation is occurring in the black community, in part because of the media coverage 

of police use of force against African Americans. Black parents are having “the talk” with their 

children about how to behave if they encounter a police officer.886 At the heart of this talk is a deep 

distrust of law enforcement officers. The talk is rooted in parents’ warranted concern that a police 

encounter could result in the arrest or death of their child. While this conversation has occurred in 

one form or another privately for a long time, its existence has been revealed to the public because 

of the deaths of unarmed black men in recent years. The talk is important because it is one African 

Americans’ only defenses to combat their perception of an excessive use of force against 

communities of color. While debate exists as to the effectiveness of “the talk” in addressing 

excessive use of force, there is no doubt that its mere existence and representation in the public 

sphere speaks to the trust issues within the Black community around police interactions. 

Video Footage 

In addition to “the talk,” Black people also arm themselves with the knowledge of how powerful 

video footage can play in aiding transparency and creating trust. While the Commission’s Report 

addressed transparency via court proceedings,887 available public data,888 reform measures,889 and 

body-worn cameras,890 some efforts at transparency will render positive results sooner rather than 

later. 

 

886 SALT Project, “Get Home Safely: 10 Rules of Survival,” http://www.saltproject.org/progressive-christianblog/2015/1/14/get-home-safely-10-rules-of-survival (last accessed Nov. 4, 2018) (depicting 10 survival rules to be 

discussed, including “(1) Be polite and respectful when stopped by the police. Keep your mouth closed; (2) 

Remember that your goal is to get home safely. If you feel that your rights have been violated, you and your parents 

have the right to file a formal complaint with your local police jurisdiction; (3) Don’t, under any circumstance, get 

into an argument with the police; (4) Always remember that anything you say or do can be used against you in court; 

(5) Keep your hands in plain sight and make sure the police can see your hands at all times; (6) Avoid physical 

contact with the police. No sudden movements, and keep hands out of your pockets; (7) Do not run, even if you are 

afraid of the police; (8) Even if you believe that you are innocent, do not resist arrest; (9) Don’t make any statements 

about the incident until you are able to meet with a lawyer or public defender; and (10) Stay calm and remain in 

control. Watch your words, watch your body language, and watch your emotions.”) 

887 Commission Report at notes 79. 888 Commission Report at notes 14. 889Commission Report at notes 73. 890 Commission Report at notes 71, 72. 
 Commissioners’ Statements, Rebuttals, and Surrebuttals 151 

A part of increased transparency is getting information out to the public in a timely manner. In 

particular, law enforcement must engage in the timely release of body camera and dash camera 

video footage. While the research results are mixed,891 some of the results show there has been a 

decrease in allegations of excessive use of force. As Wade Henderson, former president of the 

Leadership Conference on Civil Rights stated: “by documenting what happens, these cameras can 

become a new mechanism of police accountability, and can provide an additional source of 

evidence for administrative and court proceedings.”892

Regardless of whether citizens can access the video footage held by law enforcement, they might 

also equip themselves with footage that they record with their own devices. In so doing, citizens 

should know that they have the right to film police. As the ACLU of North Carolina stated: 

 You can take pictures of anything in plain view in a public space including federal 

buildings, transportation facilities, and the police, as long as you are not interfering 

with law enforcement. 

 Police officers may not confiscate or demand to view your digital photographs or 

video without a warrant, and they cannot delete your photographs or video under 

any circumstances. 

 [The NC ACLU offers an app which] allows you to record audio and video which 

is then automatically sent to the ACLU of North Carolina.893

Unfortunately, video footage is not a panacea for excessive use of force.894 But, such footage 

allows people to tell their story, to take back their power, to influence the narrative about police 

use of force, and to begin a conversation about police practices in America.895 It also brings a 

measure of transparency that is otherwise lacking in police interactions. 

Conclusion 

In conclusion, the story is still being written on excessive use of force by our law enforcement. 

The Commission’s Report tells part of that story. As the story continues to unfold, hope lies in law 

enforcement’s ability to create greater trust through the release of video footage in a timely manner. 

Until then, African-American parents will likely continue to have “the talk” with their children 

and will be equipped with fully charged cell phones to video any interactions with law 

enforcement. 

 

891 Commission Report at notes 63 (noting that “body cameras are a relatively recent development. . . and the exact 

number of jurisdictions that fully utilize this technology is not known (at the time of this report).” 

892 Commission Report at notes 64. 893 Molly Rivera, “You Have the Right to Film Police,” ACLU North Carolina, July 13, 2016, 

https://www.acluofnorthcarolina.org/en/news/you-have-right-film-police. 894 Mark Berman, “What the Police Officer Who Shot Philando Castile Said about the Shooting,” Washington Post, 

June 21, 2017, https://www.washingtonpost.com/news/post-nation/wp/2017/06/21/what-the-police-officer-whoshot-philando-castile-said-about-the-shooting/?utm_term=.c26bb9cf4429 (noting a statement by a University of 

Pittsburgh law professor that “video may give us some insight on [shootings], but it doesn’t change the fundamental 

standard by which police actions using force are judged.”). 895 Katie Dupere, “How to Use Your Phone to Record Police Violence Safely and Effectively,” Mashable, July 7, 

2016, https://mashable.com/2016/07/07/police-violence-video-phone/. 
152 Police Use of Force 

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Commissioners’ Statements, Rebuttals, and Surrebuttals 153 

Statement of David Kladney 

Too many citizens in this country do not feel safe in their communities or their home. They also 

feel unsafe calling the police. 

Nine-Hundred and Eighty-Seven (987) citizens that died in 2017 were shot and killed by police.896

These encounters encompass a wide range of circumstances. Some of this number threatened the 

lives of officers or civilians. Some had committed violent crimes. Some did not understand police 

officer directives or police misunderstood their actions. Some died because of indefensible police 

officer actions. 

In 2017, 46 police officers were shot and killed while on duty in the United States.897 A decrease 

from 66 in 2016.898 In the past 50 years, only the year 2013 saw fewer police deaths.899

There is a problem in America with all these deaths continuing to occur and causing deep loss to 

both families of police, police themselves, citizens, and society. 

The extremes proffered by either side of this issue will not solve the problem. They will not move 

the needle. There is (or should be) a consensus in the middle that police work best when they are 

accountable for their actions and maintain community trust. 

The testimony at the briefing and research set forth in our report covers many issues including 

police training, conduct, investigation and the procedure used in officer involved shootings, police 

interactions with citizens afflicted with mental health diagnosis, police accountability, community 

trust, citizen conduct, and the issues raised by the Law Enforcement Bill of Rights. 

In 1989, in the case of Graham v. Connor, the United States Supreme Court held that police use 

of force should be evaluated based on “objective reasonableness” and explained that 

reasonableness: 

 

must be judged from the perspective of a reasonable officer on the scene, rather 

than with the 20/20 vision of hindsight . . . The calculus of reasonableness must 

embody allowance for the fact that police officers are often forced to make splitsecond judgments—in circumstances that are tense, uncertain, and rapidly 

 

896 Washington Post, “2017 Police Shootings Database,” https://www.washingtonpost.com/graphics/national/policeshootings-2017 (last accessed Nov. 4, 2018). 897 Officer Down Memorial Page, “Honoring Officers Killed in 2017,” 

https://www.odmp.org/search/year?year=2017 (last accessed Nov. 4, 2018). 898 Alexa Lardier, “Dramatic Drop in Police Officer Deaths in 2017,” U.S. News and World Report, Dec. 28, 2017, 

https://www.usnews.com/news/national-news/articles/2017-12-28/dramatic-drop-in-police-officer-deaths-in-2017. 899 Ibid. 
154 Police Use of Force 

evolving—about the amount of force that is necessary in a particular situation.

Graham v. Connor, 490 U.S. 386, 396-97 (1989). 

When looking at the Supreme Court standard, it is a fluid standard depending on the situation. It 

is not a self-defense standard. It is a judgment standard created by each separate instance. 

This standard allows for killings that are “lawful, but not necessary.”900 

This is a harsh standard for civilians to understand . . . the killing of a person, the taking of a life 

when it is not necessary and it isn’t a crime. With a bar this low justifying the taking of a life, 

police administration and supervising officers must develop and install better ways of training and 

interacting with citizens that leads to less death and pain to both police and the citizens they serve. 

It is impossible for every interaction to go perfectly, but that is no reason not to make 

improvements. As our report and objective evidence from departments around our country show, 

the deaths from police use of force can be diminished by the use of new methods: policing methods, 

accountability, police education and training, an openness with the public, and public involvement. 

While Graham established the constitutional floor for excessive use of force, many jurisdictions 

have chosen to move beyond these bare minimums and adopt a more exacting and detailed set of 

policies, training procedures such as rules on shooting at moving vehicles, rules on pursuits, officer 

education and other use of force issues that have worked to reduce injury to both citizens and 

police. Similarly, members of the public have commented that the great degree of discretion left 

to police departments by the Supreme Court’s decision in Graham means their concerns are not 

being addressed by the courts. This leaves the legislature and police departments to take the 

initiative in addressing excessive police force. 

The decision in Graham leaves wide latitude for an officer in many circumstances the police find 

themselves. However, as our finding and recommendations show, there are many actions which 

can be taken by police departments to protect the officer’s rights, citizen’s rights and the right of 

the public to transparency while saving lives which now are taken unnecessarily. The report 

includes and findings and recommendations with evidence-based practices departments and 

lawmakers should employ to ensure everyone is safer. 

INVESTIGATION OPENNESS & TRANSPARENCY 

Secrecy breeds mistrust, and trust is what we need to rebuild in communities and in the police 

departments. 

 

900 Michelle Rindels, Luz Gray, “Vegas police led the way in overhauling force policies, but it hasn’t been a 

panacea,” Nevada Independent, Aug. 19, 2018, https://thenevadaindependent.com/article/vegas-police-led-the-wayin-overhauling-force-policies-but-it-hasnt-been-a-panacea (quoting Capt. Kelly McMahill, Las Vegas Metropolitan 

Police Department). 
Commissioners’ Statements, Rebuttals, and Surrebuttals 155 

The Laquan McDonald case saw extensive delay of more than a year at the direction of the city 

administration, the police and the prosecutor.901 In addition, questions emerged about fellow police 

officers attempting to doctor the forensic evidence at the scene.902 If it wasn’t for activists taking 

action, that video and the officer’s actions would never have been seen or known by the public. 

Prosecution of a police officer for excessive use of force, of which there are very few, begins with 

the grand jury. This is an ancient legal procedure first employed in England in the 1100’s. Courts 

do not preside over the grand jury. Prosecutors do. 

What appears to be occurring time and again after a shooting is the prosecutor will present the 

evidence she/he wishes to at the secret grand jury proceedings, the jury members will find the 

officer not responsible and community members do not trust that the proceeding was fair, resulting 

in outrage. The transcripts of the proceeding, the physical evidence admitted during the hearing 

and the witnesses called to testify are all secret. There is no transparency for the public. 

The public is not presented with an opportunity to see the process in operation which is presided 

over without judicial oversight; rather, the public is left to guess at how the outcome was reached 

without a judge and a prosecutor who works on a daily basis with the police department with which 

she/he is presenting the case. It is no wonder there is outrage at the result when people have no 

way of knowing what went on and reason to think prosecutors might be on the side of the police. 

There are a number of ways to accomplish the objective of impartial, fair investigations and grand 

jury proceedings in which the public can be confident. 

Judge Lawrence Marks of the New York Court of Appeals testified at the briefing that Chief Judge 

Jonathan Lippman proposed these grand jury proceedings be overseen by a trial judge to lend 

assurance to the public that the proceeding were conducted fairly and up to judicial standards.903 I 

agree this should be the very minimum of change. 

I propose the grand jury should be conducted in a more open fashion. The prosecutor would 

conduct the proceedings with a judge present and allowed to exclude inadmissible evidence, but 

the proceeding would be open, after a fashion, to the public. The best way to accomplish this new 

procedure is to have the proceeding televised without the public or news media present in the grand 

jury room. If televising the proceeding is impracticable, then a videotaped version could be 

released to the public without editing content. The press and public should not be in the room so 

the grand proceeding will not be disrupted. The transcript would be released immediately, no more 

than 48 hours after the grand jury has reached a decision. This would allow the public to see what 

evidence the prosecutor presented, the fashion it was presented in, the witnesses called, the 

questions asked, and the instructions given to the grand jury on what constitutes the elements of a 

violation. 

 

901 See Jason Meisner, Jeremy Gorner and Steve Schmadeke, “Chicago releases dash-cam video of fatal shooting 

after cop charged with murder,” Chicago Tribune, Nov. 24, 2015, http://www.chicagotribune.com/news/ct-chicagocop-shooting-video-laquan-mcdonald-charges-20151124-story.html. 

902 Patrick Elwood, “Officers accused in Laquan McDonald cover up allowed to return to work,” WGN 9, June 12, 

2017, https://wgntv.com/2017/06/12/police-board-delays-discipline-for-cops-in-laquan-mcdonald-case/. 903 Lawrence K. Marks, Chief Administrative Judge, New York State Courts, Briefing Transcript at 176-81, 

https://www.usccr.gov/calendar/trnscrpt/Police-Practices-and-Use-of-Force_04-20-2015.pdf. 
156 Police Use of Force 

States should also investigate the possibility of establishing a use of force investigation office that 

is separate and apart from the law enforcement system of the state. If states are too small to develop 

and fund such an endeavor, they should join together with other states and form an intergovernmental investigative unit. Most police loathe having civilian police boards review their 

work, perhaps they would feel better it neutral professional investigators looked at their work and 

a professional unattached prosecutor presented the evidence. 

TRAINING & MENTAL HEALTH 

Disability groups are vocal in the need for more and specific police training dealing with mental 

issues. Nearly a quarter (24%) those 987 deaths last year were those with mental disabilities.904

A strong push for training has come from the Autistic community and their supporters. In 2017 

the Florida legislature unanimously passed and Governor Rick Scott signed into law a provision 

requiring special training of police officers to be able to identify and interact with people with 

autism. This law was the result of video of an autistic man’s caretaker getting shot by an officer. 

The caretaker was trying to get the autistic man to comply with the police request. The bullet taken 

in the leg of the caretaker was meant for the man with autism.905

One in 59 children in our country place somewhere on the autism spectrum.906 This condition has 

a strong lobby throughout the legislative halls in our country. They were able to pass this new law. 

Matt Puckett, the executive director of the Florida Police Benevolent Association said the training 

would help police officers be more effective and prepared. 

We’re having so many interactions with our law enforcement officers and people 

in the streets that are mentally ill, that are suffering from some kind of illness that 

makes their behavior abnormal, at least to what the current training standards are. 

We’re trying to specify these things, so that officers are better equipped to handle 

this sort of stuff.907

It should be noted this training is occurring in only some of the 18,000 police departments 

throughout the country on an ad hoc basis with no coordination. 

 

904 Washington Post, “2017 Police Shootings Database,” supra note 896. 905 Elizabeth Koh, “New law requiring autism training for police officers to take effect,” Miami Herald, Sept. 30, 

2017, https://www.miamiherald.com/news/state/florida/article176348886.html. 

906 Autism Speaks, “CDC increases estimate of autism’s prevalence by 15 percent, to 1 in 59 children,” April 26, 

2018, https://www.autismspeaks.org/science/science-news/cdc-increases-estimate-autism%E2%80%99s-prevalence15-percent-1-59-children (explaining data from the Centers for Disease Control and Prevention). The prevalence of 

autism among adults is not tracked. Ibid. 907 Sascha Cordner, “New Law Requiring Autism Training For Law Enforcement Takes Effect Sunday,” WFSU, 

Sept. 28, 2017, http://news.wfsu.org/post/new-law-requiring-autism-training-law-enforcement-takes-effect-sunday. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 157 

To show how much officers need to learn about mental issues affecting members of the public, 

I’ve attached as Exhibit 1, a list of signs and symptoms set out by Autism Speaks for police to use 

in identifying those with autism.908

Many other mental conditions don’t have the representative strength behind their lobby as the 

citizens concerned with autism. Many have no lobby at all. The specialized training for these 

conditions go unaddressed by many of those 18,000 police departments that still believe in the 

philosophy of ATM, “ask’em, tell’em, make’em” It is time for a change. 

Our police officers face not only autism, but conditions ranging from language disorders, limited 

hearing and deafness, behavioral disorders, and mental health concerns. Their bosses in police 

administration, city councils, county governments and legislatures should adequately prepare them 

for these conditions they face every day. Each of these medical conditions present different 

symptoms and require difference responses when interacting with people in crisis. We cannot 

expect front line police officers to handle these problems in a professional manner unless they are 

adequately trained. That’s the responsibility of the politicians, chiefs and sheriffs. 

The difficult job police face is exacerbated by a lack of available mental healthcare. Legislatures 

throughout the country along with mental health civil rights groups combined together to close 

down the mental institutions of the ‘80s. Their closure was to be supplemented with community 

mental health centers. They never were. 

People in mental health crisis are therefore far more likely to encounter police. For more than 30 

years officers have struggled to meet this challenge. The police are men and women who are not 

mental health professionals. Yet, legislatures continue to fail the police in this vital area of their 

profession. They have turned every jail in the country into the largest mental institution in their 

jurisdiction, and state prisons into long-term mental institutions. It is time for this to stop. 

Communities must fund real mental healthcare, available to all. 

In the meantime, it is time for police to get more help and specialized training. This takes time and 

money. POST (Police Officer Standards and Training) schools throughout the country should 

school their trainees and active police officers should be required to attend continuing education 

classes on mental illness and how to deal with it in their duties. Current training is woefully 

inadequate. There should be classes and the officers should meet mentally disabled people of their 

community and learn to interact with them. This will require the length of training for POST to be 

extended. Whatever the additional time and cost, the training will protect the community for the 

cadet’s and active officer’s careers. It will protect police officers too. 

Legislatures should provide money so mental health professionals can accompany officers on calls. 

This assistance can be targeted to where it is needed most. Legislatures and local governments, 

who have failed to set up active and working community mental health centers in all communities, 

 

908 Autism Speaks, “Information for Law Enforcement,” https://www.autismspeaks.org/information-lawenforcement (last accessed Nov. 4, 2018). 
158 Police Use of Force 

should provide for a mobile mental health clinic with authorized professionals who can dispense 

medications to those who need it. This mobile unit would be able to assess these citizens and 

encourage and assist them in managing their conditions.909 Our local jails only provide medication 

to those who need it while they are incarcerated. When released they usually have no medications 

to take the next day. Senseless. 

City and county jails, as stated above, have become our largest mental institutions. Rather than 

taking a person to jail for initial treatment, they should be allowed to voluntarily go to a community 

crisis center.910

It would be a special center staffed with professionals or a hospital that deals with these issues. 

Arkansas has set up four community crisis centers where mentally disabled which have come to 

the attention of police can choose whether they, the citizen, wants to go to jail or the crisis center. 

Most choose the center.911

Each community should experiment with solutions. 

I am sure there are some people who will criticize this approach as being too expensive or say 

people with mental health disabilities should be responsible for taking their medication, or, better 

yet, it is their problem and not the community. This approach not only denies proper treatment, 

but irreparably damages the community and abandons sections of the community to hopelessness 

and danger. 

It should also be noted, those who oppose these approaches are costing the taxpayer unnecessary 

expense of keeping people with mental health disabilities in jail. This is not a cheap proposition. 

At a reasonable estimate of $150 a day, one year of keeping a mentally disabled person confined 

to jail is more than $54,000 a year. I invite those who refuse to address this issue because of cost 

of taking a new approach to do the math. Both in the cost of lives and money. 

Finally, if nothing is done on the treatment end, more and more individuals in mental crisis will 

have to interact with police, requiring police to continuously train and try to avoid fatal interactions 

to the citizen and law enforcement. 

NEW TRAINING APPROACHES 

In addition to mental health training, officers must have skills and knowledge of how to approach 

situations so they are less likely to be left with deadly force as their only option. As detailed in the 

 

909 See Stephanie W. Y. Yu, Caterina Hill, Mariesa L. Ricks, Jennifer Bennet, and Nancy E. Oriol, “The scope and 

impact of mobile health clinics in the United States: a literature review,” International Journal of Equity Health, vol. 

16 (2017), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5629787/#. 

910 Council of State Governments, “Arkansas Opens First Crisis Stabilization Unit,” March 20, 2018, 

https://csgjusticecenter.org/jr/arkansas/posts/arkansas-opens-first-crisis-stabilization-unit/. 911 Max Bryan, “Police Response to Arkansas County’s Crisis Unit Improves,” U.S. News, June 11, 2018, 

https://www.usnews.com/news/best-states/arkansas/articles/2018-06-11/police-response-to-arkansas-countys-crisisunit-improves. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 159 

report, evidence-based training approaches should be adopted to equip offices to interact safely in 

the community. 

o Reality Based Training (RBT)

This realistic, situational-based training requires realistic scenarios where police officers face 

urban interactions with real people acting as citizens. It increases accurate decision making under 

stress in mock situations. It helps the officer decide whether what is occurring is a threat to the 

officer or other members of the public in circumstances which are tense, uncertain, and rapidly 

evolving. This allows the officer to make better decisions about the amount of force that is 

necessary in a particular situation. 

The Community Oriented Policing Service (COPS office at the Department of Justice) described 

Reality Based Training in its final report on the Las Vegas Metropolitan Police Department: 

The program was designed to prepare officers to handle dynamic, critical incidents 

as a team, and to use analysis of critical incidents to address emerging challenges. 

The program includes classroom lectures and scenarios. It was made a mandatory 

semi-annual requirement for all of patrol, the community-oriented policing (COP) 

units, and for problem solving units (PSU). In addition, all supervisors are required 

to complete an RBT module that is specifically designed to emphasize leadership 

skills in a critical incident.912

At our briefing, David Klinger of the University of Missouri-St. Louis testified: 

One of the things we know is that some states around the country do not require 

satisfactory number of hours in fundamental tactical training. They might get a little 

bit of it in the academy, but no force on force training, not appropriate scenariobased training[.]913

Tactical training is important. It allows officers not to have to make these decisions the first time 

in the field with lives in the balance. 

o De-escalation Training

De-escalation training allows the officer to learn to identify the situation and slow the momentum 

of the interaction so that using force is as unnecessary as possible. This gives the officer the 

opportunity to learn more about the citizen(s) being confronted. Is the citizen suffering a mental 

 

912 George Fachner and Steven Carter, Collaborative Reform Model: The Final Assessment Report of the Las Vegas 

Metropolitan Police Department, U.S. Dep’t of Justice, Community Oriented Policing Services, 2014, at 18-19, 

https://ric-zai-inc.com/Publications/cops-p287-pub.pdf. 

913 Klinger, Briefing Transcript at 333-34. 
160 Police Use of Force 

health crisis, intoxicated, emotionally distraught, able to hear and understand his commands, etc. 

This also gives time for additional resources, other officers along with a supervisor and 

medical/mental health personnel, to arrive on the scene. 

A survey by the Police Executive Forum showed new recruits received a median of 58 hours 

firearm training, 49 hours defensive tactical training, and 8 hours de-escalation training.914 

The Las Vegas Metropolitan Police Department (LVMPD) has been teaching their officers this 

concept. Their experience has been very positive. They have reduced officer-involved shooting by 

half.915 Their study did show that force will usually be used if the interaction goes longer than 6 

minutes.916 However, the use of this tactic has remarkably reduced the use of force throughout the 

department.917

Now the LVMPD spends 100 hours at its academy on de-escalation training.918 

The San Francisco Police Department is using this tactic too. They found slowing down situations 

dramatically reduced the probability force would be used. Tony Chaplain, interim police chief, 

described their findings about interactions as follows: “In under a minute, forty five percent of the 

shootings occurred. When you went to a minute, you're up to ten percent. At two minutes you're 

at five percent. Three minutes . . . literally the graph falls off a cliff with each minute that you stall 

these things out. If we create this time and distance, as you can see from this graph, we save 

lives.”919

Other departments are slowly introducing de-escalation as they learn how it functions and how 

successful it is. It is not a strategy which places officers in danger, it is another tool they can use 

besides those on their belts. 

o Fair and Impartial Policing Training

 

914 U.S. Commission on Civil Rights, Police Use of Force: An Examination of Modern Policing Practices, 2018 

[hereinafter Commission Report] at notes 970 (citing Police Executive Research Forum, Re-Engineering Training 

on Police Use of Force, supra note 309 at 11). 915 Fachner and Carter, Collaborative Reform Model: The Final Assessment Report of the Las Vegas Metropolitan 

Police Department, supra note 912 at 21. 916 Office of Internal Oversight, Las Vegas Metropolitan Police Department, Use of Force Statistical Analysis 2012‐

2016, at 9, https://www.lvmpd.com/enus/InternalOversightConstitutionalPolicing/Documents/Use%20of%20Force%20Statistical%20Analysis%202012-

2016%20-%20051117.pdf. 

917 Ibid. at 6. 918 Rindels and Gray, “Vegas police led the way in overhauling force policies, but it hasn’t been a panacea,” supra

note 900. 

919 Reveal News, “What cops aren’t learning,” May 6, 2017, https://www.revealnews.org/episodes/what-cops-arentlearning/. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 161 

This training program is based on the assumption that most police are well-intentioned, but 

subconscious bias can lead to flawed decision-making. Officers throughout the country bristle at 

the thought they operate with some form of unconscious bias. 

Experts who assert this rely on data. For instance, prior to receiving training the LVMPD data 

analysis concluded that 90 percent of unarmed subjects in officer-involved shootings were black 

or Hispanic, and all subjects shot as a result of an officer-initiated stop were black or Hispanic. 

This data resulted in unconscious bias training being instituted by LVMPD.920 

Regardless of how officers personally feel, this type of training enlightens their perspective on 

how unknown biases affect how we view each other. It can assist officers in making more accurate 

assessments of whether a person is a threat. Further, the knowledge that police are undergoing this 

training will increase community trust, creating a virtuous cycle. All of us, including police, have 

biases. It is our responsibility to ensure unconscious bias does not affect police actions, particularly 

when those actions can have deadly consequences. 

POLICIES & ACTIONS DEPARTMENTS CAN TAKE 

o Critical Incident Review

Each department should use critical incident or “near miss” review after each and every use of 

force incident, especially discharge of weapons, tasers and use of batons. This critical use of force 

review should be conducted pursuant to the same legal protections as those done in hospitals after 

treatment or surgery has led to an unexpected negative outcome or death. It should receive the 

same legal protections as well.921

The review should include actions that were both appropriate and inappropriate according to 

department policy. Whether there needs to be a policy change, more training and/or supervision or 

whether the officers involved acted correctly and should be acknowledged for their actions. It 

should also review whether supervisory functions were appropriately followed. 

o Community Policing

With 18,000 police departments, 200,000 sworn officers, and so many different types of 

communities (urban, rural, suburban, student, etc.) community policing takes different forms. 

A retired police officer described to me his actions when patrolling a neighborhood. After muster, 

he would drive his unit to an urban park in his district and start picking up trash. The residents got 

to know him from this and other actions. He would when time permitted play a game of horse with 

the kids on the basketball court or engage a dad in who was at the park with his kids who might be 

having a beer. Interestingly, under “broken windows” theory of policing the dad would be cited 

 

920 Fachner and Carter, Collaborative Reform Model: The Final Assessment Report of the Las Vegas Metropolitan 

Police Department, supra note 912 at 32. 921 See Klinger, Briefing Transcript at 313-15. 
162 Police Use of Force 

for open container or taken to jail. However, this officer thought it was a good thing the dad was 

with the kids spending time in the park and not creating a problem. He also engaged the basketball 

kids. Over time he interacted this way with many citizens in his patrol area. As a result, he not 

only gained trust and respect from the citizens, he also gained great sources of information. 

However, there was no department consistency in this policy. The next officer on duty may have 

cited the dad or ignored the kids and merely patrolled in his/her prowler. 

Departments should analyze their communities and how they can engage their officers into the 

community so that a friendship and/or relationships can grow between the police and the citizens 

they are sworn to protect. These relationships are valuable when crimes occur and information 

from the community is needed to solve crimes.922 

The departments should engage with officers that patrol the different areas the different 

communities through outreach at the schools, community meetings, at places of worship and 

community centers. The police should explain how policing works, what their policies are, the 

legal and factual ramifications of Graham, and the type of response and conduct they expect when 

they are performing their duties. 

This analysis is not a one-size-fits-all. Each community is different and police should rely on 

themselves and experts to develop both the strategy and tactics for a community and its policing. 

o Accountability

The Las Vegas Metropolitan Police Department was the first police force to invite the COPS office 

to join the LVMPD in a collaborative reform effort in 2010. The final report says this collaborative 

effort is still an evolving effort; however, interim reports and a final report was issued. The 

department instituted many of the collaborative recommendations.923

Collaborative reform is a joint review of a local police department by the U.S. Department of 

Justice's Office of Community Oriented Policing Services and the local police department. 

It is not an investigation of specific incidents, cases or officers, but instead an analysis of police 

department policies and practices that affect good policing practices and the public's trust. This is 

not a federal investigation. It's meant to be a big-picture look at operations, trends and the details 

of the system. The DOJ analysis in conjunction with the local department is intended to identify 

ways the department can improve policing and relationship with the community they serve. 

 

922 Important investigation is now being conducted into the failure of some police departments to solve crimes in all 

communities and a lack of trust in the police in those communities. See Wesley Lowery, Kimbriell Kelly, Ted 

Mellnik, and Steven Rich, “Where Killings Go Unsolved,” Washington Post, June 6, 2018,

https://www.washingtonpost.com/graphics/2018/investigations/where-murders-go-unsolved/; Leovy, Ghettoside: A 

True Story of Murder in America, supra note 173. 923 Fachner and Carter, Collaborative Reform Model: The Final Assessment Report of the Las Vegas Metropolitan 

Police Department, supra note 912 at 18-19. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 163 

It is the department’s decision as to which policies, procedures or recommendations they will 

institute. 

From the collaboration, the LVMPD instituted a Critical Incident Board. They also instituted a 

Use of Force Review Board. Both boards are chaired by the same deputy chief appointed by the 

sheriff. Membership on the Use of Force Review Board includes police officers, supervisors, and 

civilian members of the community. 

Prior to 2010: 

the accountability mechanisms that LVMPD had in place to review officer involved 

shootings were extremely limited. For example, the force review board could only 

focus its review on the moment an officer discharged his or her firearm. This narrow 

scope produced judgments in which the officer’s actions were almost always found 

to be justified, even in questionable circumstances. The scope of review was greatly 

expanded to include not just the decision making at the moment the officers 

employed deadly force, but also the tactics, communications, and supervision of all 

personnel involved. LVMPD determined that more finding categories were needed 

to provide greater accountability for all involved officers. These included: 

o Administrative approval 

o Tactics/decision making

o Policy violation not directly related to use of force 

o Policy/training failure

o Administrative disapproval924

This change has resulted in more accountability to the public and the police. 

The 2014 evaluation noted during the past two years the Use of Force Review Board “has issued 

an unprecedented number of findings that are critical of the officers’ actions and/or how they were 

managed by supervisors. Consequently, the board has recommended significant remedial action, 

including training, discipline, one demotion, and the termination of two officers.”925

VIDEO AND AUDIO RECORDINGS 

Would the North Charleson shooting of Walter Scott have resulted in criminal charges if an alert 

citizen had not caught the back shooting on video? Would the blue line have held in that 

incident?926 It is clear capturing officer actions on video has dramatically increased public 

awareness of police use of force concerns and led to some needed changes to increase officer 

accountability. Many, including this Commission, endorse the policy solution of requiring officers 

to use body-worn cameras so that there is less ability to fabricate what actually happened in an 

encounter. However, as we note, body-worn cameras are not a silver bullet. Simply purchasing the 

equipment is no guarantee officers or civilians will behave differently or that accountability will 

 

924 Ibid. at 18. 925 Ibid. at 6. 926 See Commission Report at FN 184. 
164 Police Use of Force 

increase. Departments must also implement policies regarding how the video is used. For example, 

in many places officers are permitted to view the footage before recounting their version of the 

incident. The gives them to opportunity to tailor their account so it is less likely to be contradicted. 

This is antithetical to the accountability purpose for which cameras were intended. 

I don’t recall the last time a person of interest in a possible criminal investigation was allowed to 

review the evidence before giving a statement as to what occurred. 

Departments should not purchase technology and assume their job is done. They must thoughtfully 

implement camera policies that bring accountability. Otherwise they have simply spent taxpayer 

money but not increased safety or community trust. 

 

SO-CALLED “BLACK ON BLACK CRIME” 

Some people think, whatever the problems with police use of force, it is not a policy, training or a 

racial issue. They claim that any disparities in rates of use of force can be attributed to police 

presence in neighborhoods with high crime rates, which tend to be communities of color. I disagree 

that we should dismiss police use of force as not being a civil rights issue. First, it is overly 

optimistic and naïve to assume that police are free of any bias in the way they interact with people, 

up to and including the ways they use force. More importantly, if police are not given the proper 

tools to understand and interact with different subcultures their actions will be skewed toward 

certain outcomes. If you only give a person a hammer, everything they see becomes a nail. 

The pervasive history of racism in our society and the present continuation of policies and attitudes 

formed in society mean that every person retains unconscious biases. They are pernicious. These 

biases influence how every one of us, including sworn officers, view behaviors and what 

judgments we make about what is appropriate. This is borne out by study after study that shows 

people of color are treated differently by law enforcement—stopped more frequently but less likely 

to be carrying contraband when searched, and more likely to be victims of violence at the hand of 

police.927 The greater frequency of interactions with the police experienced by people of color are 

caused by many systemic factors and cannot be explained away by individual behavior.928 

 

927 See, e.g., John Sides, “What data on 20 million traffic stops can tell us about ‘driving while black’,” Washington 

Post, July 17, 2018, https://www.washingtonpost.com/news/monkey-cage/wp/2018/07/17/what-data-on-20-milliontraffic-stops-can-tell-us-about-driving-while-black/ (discussing Frank R. Baumgartner, Derek A. Epp, and Kelsey 

Shoub, Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race (Cambridge: Cambridge 

University Press, 2018)); Sharon LaFraniere and Andrew W. Lehren, “The Disproportionate Risks of Driving While 

Black,” New York Times, Oct. 24, 2015, https://www.nytimes.com/2015/10/25/us/racial-disparity-traffic-stopsdriving-black.html; Floyd, 959 F. Supp. 2d 540, 

https://archive.nytimes.com/www.nytimes.com/interactive/2013/08/12/nyregion/stop-and-frisk-decision.html; 

Lance Hannon, “An Exploratory Multilevel Analysis of Pedestrian Frisks in Philadelphia,” Race and Justice

(2017), http://journals.sagepub.com/doi/abs/10.1177/2153368717730106; Brad Heath, “Racial gap in U.S. arrest 

rates: ‘Staggering disparity’,” USA Today, Nov. 18, 2014, 

https://www.usatoday.com/story/news/nation/2014/11/18/ferguson-black-arrest-rates/19043207/ 928 See, e.g., Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes, 104 GEO.

L.J. 1479 (2016), https://georgetownlawjournal.org/articles/216/blue-on-black-violence/pdf. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 165 

Police presence alone does not inevitably mean or explain police must use excessive force. 

Presence does not require use of force. Even when police are in some areas more often, they can 

and should be trained to operate so that force is used as a last resort. Officers and supervisors 

should be held accountable when they violate that standard. Currently, this is not consistently 

happening. 

LIMITS TO ACCOUNTABILITY 

Provisions contained in state laws and collective bargaining agreements actively inhibit 

accountability by shielding officers from effective investigation. Of particular note, in some cities 

and states there is a required “cooling off period” after a use of force incident before an officer can 

be questioned. These periods are commonly 48 hours, but can be 10 days or longer. Advocates for 

allowing a cooling off period before questioning claim having “2 sleep cycles” results in more 

clarity in the officer’s recollection after a traumatic event. Conveniently, it also allows officers to 

consult with other witnesses, speak to lawyers, and in some places, view video footage before 

reporting their version of the incident. Current understandings of brain science do not support 

delaying interviews in this manner.929 To the contrary, immediate accounts supplemented by a 

later interview yields the most accurate reflection of what actually happened. In no other instance 

would officers wait to question witnesses, persons of interest and perpetrators after a shooting. The 

idea would be rejected as ludicrous. 

 

Similarly, provisions allow officers to review all the evidence against them before being 

interviewed and include very short limitations periods for when officers can be disciplined for 

policy violations of any sort, sometimes as short as 100 days or less. This means even severe 

violations of law and policies are never addressed. This allows bad-acting or ill-trained officers 

acting improperly and against the best interests of the rest of the department to continue without 

correction. These limits to police accountability should be eliminated as they do not serve the best 

interests of the public, the department, or the community they serve. 

COLLECTION OF DATA 

We track what we care about. This report and many other accounts make plain the failure of the 

federal government, and well as local and state governments, to accurately track, categorize, and 

publicize police uses of force. Such data collection is necessary to analyze use of force policies, 

implementation, supervision, and to build community trust in law enforcement. Community trust 

is necessary to prevent crimes and catch perpetrators of crime. Although technical challenges exist, 

what is lacking in many places is the will to take on the challenge. Newspapers and non-profits 

should not be forced to do their own investigations and tracking of police uses of force. This 

information should be open and freely available. 

Police departments talk of how well they track and report incidents that occur outside the 

departments; so it should not be very difficult to track use of force incidents by the department’s 

own members. 

 

929 Walker, Police Union Contract “Waiting Periods” for Misconduct Investigations Not Supported by Scientific 

Evidence, supra note 333. 
166 Police Use of Force 

It is the only way the public will know how their police, the people who we give the ultimate power 

in this country are conducting our business. 

INTERACTION DURING TRAFFIC STOPS 

In addition to the training and accountability changes we should make to prevent police from 

abusing their power, driver’s education courses should also address the reality that a simple traffic 

stop can become dangerous for a driver if an officer misunderstands the driver’s actions. 

Illinois, Virginia and Miami require as part of driver’s education that students learn about traffic 

stops from the perspective of a police officer, as one step in building community trust.930 In Miami, 

officers stress that driver’s shouldn’t assume cops are out to get them and teach young people how 

to approach being pulled over. The classes teach driver protocol for behavior during stops that is 

just as vital as learning all the other rules of the road. Drivers should know to stay calm, keep their 

hands on the wheel and comply with officer’s instructions. 

Lives hang in the balance of this interaction, as shown in a South Carolina case where an officer 

confronted a young driver who was out of his truck at a gas station. The officer asked for the 

driver’s license and then shot the driver when the driver turned to reach back into the truck to get 

his driver’s license upon the command of the state trooper. When the man turned around the 

trooper fired four shots hitting the man in the leg.931

Police bear responsibility to use force only as a last resort, and even with the best education, not 

all people will interact with officers in a cogent manner. For example, as detailed above people in 

mental health crisis, those who are under the influence, or have some other condition that causes 

them to react in unexpected ways should also be assured police will do all they can to keep them 

safe. Driver education is one way to keep people safer, and it should be part of the conversation as 

well. 

CONCLUSION 

We call on our police officers to perform all sorts of duties besides enforcing the law. They respond 

to robberies, burglaries, homicides, auto accidents with death or injury, domestic violence calls, 

lost children, lost adults, mental health crises, truancy; they deliver babies, write traffic tickets and 

intercept drug couriers among other duties. As they respond during their shifts, they can be called 

 

930 Kyra Gurney, “In program to build trust, police teach Miami teens how to respond to traffic stops,” Miami 

Herald, March 22, 2017, https://www.miamiherald.com/news/local/education/article140179943.html; Brendan 

Ponton, “Gov. McAuliffe signs bill requiring lessons on traffic stop interactions during drivers ed,” WTKR, May 8, 

2017, https://wtkr.com/2017/05/08/gov-mcauliffe-to-sign-bill-requiring-lessons-on-traffic-stop-interactions-duringdrivers-ed/; Karen Jordan, “New law requires students to learn how to handle being pulled over by police,” ABC 7 

Chicago, Aug. 8, 2016, http://abc7chicago.com/news/new-law-requires-students-to-learn-how-to-handle-beingpulled-over-by-police/1461899/. 

931 See Jason Hanna, Martin Savidge and John Murgatroyd, “Video shows trooper shooting unarmed man, South 

Carolina police say,” CNN, Sept. 26, 2014, https://edition.cnn.com/2014/09/25/justice/south-carolina-troopershooting/index.html. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 167 

upon to respond from one tense situation to another. This can lead to mistakes in judgement. 

Department leadership and supervisors need to learn to recognize this and not merely rely on 

officers’ training to have them deal with one tense and ugly situation after another on a shift, but 

they must learn to take action in real time to decompress the officer. 

We should adequately prepare them to carry out the duties they are directed to do. We owe them 

the best training to prepare them, as we do any professional, on the many different ways to interact 

with citizens of all types. They are professionals. We expect them to conduct their interactions in 

a proper manner. We as taxpayers are obliged to provide them the best training so they are prepared 

for what they face every day. We must also pay them better for this more complex and complicated 

effort and provide adequate staffing and supervision in the field. 

With the low bar created by the Supreme Court in Graham, policing must start changing. Hook’em 

and book’em policing will not be the major tool used by the police in dealing with citizens moving 

forward. 

Policing is changing from police being warriors of the 70’s to being community guardians of today. 

This change will be slow, but it is coming. 

Despite this administration’s attempt to the stop reform and give police free reign over the citizens 

of this country, change is going to come. By dismantling collaborative reform and pattern and 

practice investigations by the Department of Justice, the president and the attorney general are 

only delaying the change toward better policing practices which protect both officers and citizens. 

The $7 million provided to a non-profit organization for a technical assistance center on policing 

policies and methods will not be as efficient as the COPS analysis of the best practices in 

partnership with those local departments whose issues to be explored vary widely. No one 

organization can address the particular issues of communities of such differing sizes, cultures and 

environments. 

Police must be given many tools to work with in performing their duties. Eighteen thousand 

individual police departments with eighteen thousand chiefs, 200,000 police officers, too 

numerous to number politicians, and plenty of police unions on the job will slow the inevitable, 

but change will come. It must. 

A FINAL NOTE 

The Commission undertook this project with the support of all eight Commissioners. Without the 

support of the staff, this project would have been impossible. The Commission staff in the Office 

of Civil Rights Evaluation did excellent work researching articles, writing and selecting witnesses 

for the briefing held at the John Jay College of Criminal Justice in New York City on April 20, 

2015. The logistics in moving our entire briefing apparatus to New York City was extremely 

difficult, but overcome by the excellence demonstrated by our administrative services department 

led by Pam Dunston. Our capable research and writing staff, in particular Marik Xavier-Brier, 

compiled the large amount of evidence on the topic to produce this first class report. Finally, John 

Jay College provided an outstanding venue to conduct the briefing. They were not only cordial but 
168 Police Use of Force 

leant a hand whenever necessary. They are an excellent example of an institution of higher 

education integrating with its community and the nation. All have my thanks and gratitude. 

I take a special moment here to give my everlasting thanks to Amy Royce for her exceptional work 

on this particular project and every other project in my office. She has spent hundreds of hours 

reviewing, editing, coordinating, organizing, and researching this project from the beginning. She 

continues with her excellence in work and commitment to the Commission’s mission. I am lucky 

to have her as my work partner. Thank you Amy. 

 
Commissioners’ Statements, Rebuttals, and Surrebuttals 169 

Exhibit 1 

Information for Law Enforcement 

On a daily basis police officers encounter a multitude of individuals in emergency situations. Just 

as each emergency differs from the next, so does the individual involved, especially in regards to 

people with autism. Police are trained to respond to a crisis situation with a certain protocol, but 

this protocol may not always be the best way to interact with people with autism. Because police 

are usually the first to respond to an emergency, it is critical that these officers have a working 

knowledge of autism, and the wide variety of behaviors people with autism can exhibit in 

emergency situations. 

Teaching first responders the signs of autism is an important first step toward preventing 

unfortunate situations. 

A person with autism might:  Have an impaired sense of danger. 

 Wander to bodies of water, traffic or other dangers. 

 Be overwhelmed by police presence. 

 Fear a person in uniform (ex. fire turnout gear) or exhibit curiosity and reach for 

objects/equipment (ex. shiny badge or handcuffs). 

 React with "fight" or "flight". 

 Not respond to "stop" or other commands. 

 Have delayed speech and language skills. 

 Not respond to his/her name or verbal commands. 

 Avoid eye contact. 

 Engage in repetitive behavior (ex. rocking, stimming, hand flapping, spinning). 

 Have sensory perception issues. 

 Have epilepsy or seizure disorder. 

If a first responder is able to identify that a child or adult may have autism, he or she can then 

respond in a way that best supports the individual. 

When interacting with a person with autism:  Be patient and give the person space. 

 Use simple and concrete sentences. 

 Give plenty of time for person to process and respond. 

 Be alert to signs of increased frustration and try to eliminate the source if possible as 

behavior may escalate. 

 Avoid quick movements and loud noises. 

 Do not touch the person unless absolutely necessary. 
170 Police Use of Force 

 Use information from caregiver, if available, on how to best respond. 

General training guidelines*:  Law enforcement agencies should proactively train their sworn workforce, especially 

trainers, patrol supervisors, and school resource officers, to recognize the behavioral 

symptoms and characteristics of a child or adult who has autism, and learn basic response 

techniques. 

 A training program should be designed to allow officers to better protect and serve the 

public and make the best use of your valuable time, and avoid mistakes that can lead to 

lawsuits and negative media scrutiny, loss of confidence from the community, morale 

problems, and lifelong trauma for all involved. 

 A good autism recognition and response workshop is designed to inform law enforcement 

professionals about the risks associated with autism, and offers suggestions and options 

about how to address those risks. 

*Dennis Debbaudt, Autism Risk & Safety Management

https://www.autismspeaks.org/information-law-enforcement 
Commissioners’ Statements, Rebuttals, and Surrebuttals 171 

Statement of Commissioner Karen K. Narasaki 

This report has been many years in the making.932 It is an issue with life and death consequences 

for both law enforcement and the communities they serve. I strongly support our findings and 

recommendations and seek to focus on two particular areas. One is the cultural shift that must be 

made within policing itself and the role that the Department of Justice can play in supporting that 

shift. The other is the shared interest that law enforcement and communities have in the need to 

address the mental health crisis we as a country have too long ignored. 

Law enforcement, increasingly faced with the consequences of our country’s failure to reform our 

nation’s discriminatory drug laws, prevent gun violence, and provide adequate mental health care 

and housing, are not getting the investment in training and time to build partnerships essential to 

maintaining legitimacy and support in the communities they require to prevent and solve crimes 

and promote public safety. Many in communities of color have been victims of racial profiling and 

excessive uses of force, view police with resentment and distrust.933 

Unfortunately, there are times when police must use force, sometimes deadly force. Sadly, we 

have had too many recent incidents, like the mass shooting last October by the white gunman 

targeting outdoor concertgoers on the Las Vegas strip, or the 2016 ambush in Dallas of police 

officers where deadly force was clearly justified. There have also been incidents where there has 

been clear misconduct sometimes with consequences and sometimes not. And there are incidents 

where it is unclear and increasingly, because of the erosion of trust in police when misconduct has 

not been addressed, communities are less willing to give officers the benefit of the doubt. 

According to the Police Executive Research Forum (PERF), concerned law enforcement leaders 

are beginning to recognize that: 

there is a gulf between policies and practices that meet the minimum requirements 

of the Constitution and those perceived as legitimate in the community. 

 

932 I would like to thank the Commission’s Office of the Staff Director, Office of Management and its respective 

Divisions, Regional Programs Coordination Unit, Office of Civil Rights Evaluation, Office of the General Counsel, 

and State Advisory Committees, as well as our Special Assistants, for their collective efforts in organizing and 

staffing the New York briefing and SAC briefings and for researching, drafting, and revising this report. I would 

also like to thank my Special Assistant, Jason T. Lagria, and our summer law clerk Aime Joo from Harvard Law 

School for their work on this report and statement. 

933 See U.S. Commission on Civil Rights, Police Use of Force: An Examination of Modern Policing Practices, 2018 

[hereinafter Commission Report], Findings: Community Trust, Finding 6. 

There is a troubling and false narrative pushed by some conservatives that excessive policing and the resulting 

excessive use of force is somehow justified due to “black crime,” “black-on-black crime,” or black neighborhoods 

being inherently more violent than other neighborhoods. Our report systematically rebuts and thoroughly rejects this 

narrative. See Discussion and Sources cited in Chapter 1, Inevitability Argument section. Most importantly, “the 

“black-on-black” crime narrative as an explanation for police excessive use of force disregards the structural and 

historical issues that formed these neighborhoods, as well as the social and economic factors that currently sustain 

them.” Ibid. at notes 33. 
172 Police Use of Force 

. . . Legitimacy is the extent to which the community believes that police actions 

are ‘appropriate, proper, and just.’ If the police have a high level of perceived 

legitimacy in a community, members of the community tend to be more willing to 

cooperate with the police and to accept the outcome of their interactions with the 

police. As a result, legitimacy is important not only for its own sake, but also 

because success in achieving key goals (such as reducing crime rates) can depend 

largely on whether the community supports the police.934 

“[R]ather than focusing only on the narrow question of whether a particular action by an officer 

can survive legal scrutiny, forward-thinking police leaders are reviewing their policies and 

practices to ensure that they not only promote community policing and crime reduction, but also 

advance the broad constitutional goal of protecting everyone’s civil liberties and providing equal 

protection under the law.”935 This approach will also help to ensure that those that risk their lives 

to keep us all safe are also able to return home safely to their families each day. Restoring the 

legitimacy of police in the eyes of communities is also important to the ability of law enforcement 

to recruit the best and the brightest to join their ranks to serve their communities. 

As we found in our investigation, there is a growing consensus that modern police should not 

envision themselves as “warriors” who transiently insert themselves into neighborhoods to do what 

needs to be done “at all costs” then depart, but as “guardians” who stay and serve the people.936

Warrior police are encouraged to “think of the people they are supposed to serve as enemies,”937

and the troublesome attitude engendered by this hyper-militarized mindset further undermines 

community trust and relationships. It is crucial that police are not simply interceding to solve 

problems “for the community,” but are working together “with the community” to reach collective 

goals.938 

While the vast majority of police officers strive for professionalism and constitutional policing, 

the lack of sufficient training in modern policing strategies and de-escalation techniques is a major 

factor in sowing community distrust of the police and perpetuating the unjustified police use of 

force. Black police officers and their associations have historically advocated for change in police 

departments to end racial bias in their profession.939 Some police unions have demanded that police 

officers get the training they need to avoid unintentionally escalating situations to where the safety 

 

934 Police Executive Research Forum, Constitutional Policing as a Cornerstone of Community Policing, supra note 

111 at 3. 

935 Ibid. 936 Commission Report at notes 59 (discussing warrior mindset). 937 American Civil Liberties Union, War Comes Home: The Excessive Militarization of American Policing, 2014, 

https://www.aclu.org/sites/default/files/assets/jus14-warcomeshome-report-web-rel1.pdf. 938 Police Executive Research Forum, Re-Engineering Training on Police Use of Force, supra note 309 at 29 

(quoting Leesburg, VA Chief Joseph Price) (emphasis in original). 939 See Taylor Hosking, “The Long History of Black Officer Reforming Policing From Within,” The Atlantic, Dec. 

5, 2017, https://www.theatlantic.com/politics/archive/2017/12/the-long-history-of-black-officers-reformingpolicing-from-within/547457/. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 173 

of officers and others become more at risk.940 For example, the Baltimore police union urged city 

and federal officials negotiating a consent decree “to include better training, more hiring, [and] 

technology upgrades[.]”941 

But change is not easy nor is it always welcomed. As recognized in PERF’s report Re-Engineering 

Training On Police Use of Force, it is difficult to change the culture when police training for 

decades has emphasized now outdated viewpoints, particularly given the fact that officers are 

putting their lives on the line every day.942 

A recent Pew Research Center survey highlights the divergent views—including among police 

officers along racial lines—of whether the shooting of African Americans in police encounters is 

representative of a larger problem of police accountability which hinders acceptance of reform 

efforts. 

Some of the sharpest differences between the police and the public emerge over 

views on deaths of blacks during encounters with police in recent years and the 

protests that many of those incidents ignited. For example, 67% of the police but 

only 39% of the public describe these deadly encounters as isolated incidents rather 

than signs of a broader problem between blacks and police. When this overall 

finding is analyzed by race, an equally striking result snaps into focus: About sevenin-ten white officers (72%) but fewer than half of all black officers see these 

encounters as isolated incidents. By contrast, majorities of black officers (57%) as 

well as the public overall (60%) say the incidents are signs of a broader problem 

between police and the black community.943

At our New York hearing, witnesses shared that the “blue wall of silence” that pressures officers 

to keep quiet about unethical behavior by encouraging retaliation against officers who step out of 

line is real.944 We heard that police officers need “whistleblower protection” and “witness 

protection for the officers that come forward . . . .”945 It is no wonder communities of color have 

 

940 See Kevin Rector, “Baltimore Police Union Responds to DOJ Report With Its Own Reform Recommendations,” 

Baltimore Sun, Oct. 13, 2016, http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-fop-dojresponse-20161013-story.html; Police Executive Research Forum, Re-Engineering Training on Police Use of Force, 

supra note 309 at 62 (Las Vegas Deputy Chief Kirk Primas discussing union buy-in). 941 Rector, “Baltimore Police Union Responds to DOJ Report With Its Own Reform Recommendations,” supra note 

940. 

942 See Police Executive Research Forum, Re-Engineering Training on Police Use of Force, supra note 309 at 3-10 

(calling for the need for an overhaul of police training). 

943 Rich Morin, Kim Parker, Renee Stepler, and Andrew Mercer, “Behind the Badge: 6. Police Views, Public 

Views” Pew Research Center, Jan. 11, 2017, http://www.pewsocialtrends.org/2017/01/11/police-views-publicviews/#police-say-no-more-changes-needed-to-achieve-racial-equality-public-divided. 944 Commission Report at notes 60-61. 945 Fogg, Briefing Transcript at 43; see also Rector, “Baltimore Police Union Responds to DOJ Report With Its Own 

Reform Recommendations,” supra note 940 (Baltimore police union request “whistleblower protections” to be 

included in DOJ consent decree). 
174 Police Use of Force 

difficulties trusting the police when some police officers themselves in some departments cannot 

always trust the integrity of the system. 

Unfortunately, as our report lays out, some police unions are resisting the implementation of 

crucial reforms despite clear indications that the situation as-is cannot stand.946 The pressure for 

police to stay silent in the face improper behavior is fortified by some provisions contained in 

union negotiated contracts and laws that have been pushed by unions947 that allow police to 

effectively “operate by a completely different set of rules.”948 Some of these protections, such as 

dismissing complaints filed after a set amount of days after the incident, preventing interrogations 

of officers immediately following the alleged misconduct, and limiting disciplinary repercussions, 

hinder accountability and transparency and shield even repeat offenders from appropriate 

punishment.949 

The difficulties of firing officers who have been found to clearly cross the line highlight the 

consequences of these provisions.950 Not only do the provisions cover-up numerous misconduct 

complaints by dismissing those filed past a certain number of days or erasing disciplinary records 

after a few years, they may make it too easy to reverse punishment decisions made by police 

chiefs.951 From 2006 to 2017, of the 1,881 officers from 37 of the nation’s largest police 

departments who were fired for betraying the public trust during that time, the arbitration and 

appeals system has resulted in 451 of them being reinstated to their jobs.952 

By putting “cops deemed unqualified by their own bosses” because of use of excessive force back 

in their jobs,953 these policies not only undermine community faith in police, but also demoralize 

the police seeking to do the right thing and chiefs who are trying to hold the department 

accountable to the public.954 Of course, officers need to collectively bargain to protect their labor 

 

946 Commission Report at notes 61-66. There is agreement across the ideological spectrum on this issue. See James 

Surowiecki, “Why are Police Unions Blocking Reform?” New Yorker, Sept. 19, 2016, 

https://www.newyorker.com/magazine/2016/09/19/why-are-police-unions-blocking-reform (police unions continue 

to attempt to “block policing reforms of all kinds”); Lucy Morrow Caldwell, “It’s Time to Take on Police Unions,” 

National Review, Dec. 16, 2014, https://www.nationalreview.com/2014/12/its-time-take-police-unions-lucymorrow-caldwell/ (“unions fight over a range of issues beyond compensation that impact the day-to-day practices of 

government workers, and in turn, citizens’ experiences interacting with them”). 947 Walter Olson, “Police Misconduct and ‘Law Enforcement Officers’ Bill of Rights’ Laws,” Cato Institute, April 

24, 2015, https://www.cato.org/blog/police-misconduct-law-enforcement-officers-bill-rights (“Maryland was the 

first state to pass a [Law Enforcement Officer Bill of Rights], in 1972, and by now many states have followed, 

invariably after lobbying from police unions and associations.”). 948 McKesson, et al., “Police Union Contracts and Police Bill of Rights Analysis,” supra note 336. 949 Ibid. at 1–2. See also Stephen Rushin, Police Union Contracts, 66 DUKE L. J. 1191, 1222–39 (2017) [hereinafter 

Police Union Contracts]. 950 See Commission Report at notes 63-66. 951 Police Union Contracts, at 1238–39. 952 Kelly, et al., “Fired/Rehired,” supra note 337. 953 Conor Friedersdorf, “How Police Unions and Arbitrators Keep Abusive Cops on the Street,” The Atlantic, Dec. 

2, 2014, https://www.theatlantic.com/politics/archive/2014/12/how-police-unions-keep-abusive-cops-on-thestreet/383258/. 

954 Kelly, et al., “Fired/Rehired,” supra note 337. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 175 

rights and ensure a fair process when under investigation or dismissed from the service. That can 

be done without pushing for excessive protections that obstruct accountability, and sometimes 

justice for the civilians unlawfully harmed by the police, and in the long run undermine the 

legitimacy police need in the communities they serve to successfully to prevent and solve crimes. 

Police unions who believe that the problem of excessive use of force against marginalized groups 

is limited to a few “bad apples” and do not want to be unfairly “painted with the same broad 

strokes” as those who commit misconduct need to spearhead efforts to weed out those outliers and 

make it easier to identify recurring perpetrators and dismiss them from service. 955 It is in their best 

interests to support reforms necessary to protect police integrity and reestablish community 

trust.956 

By creating special protections and privileges for officers suspected of wrongdoing, these policies 

suggest that the law “isn’t a body of rules binding on all of us, but something [police] impose on 

others,”957 heightening the image of police as outside soldiers, so unattached to the neighborhoods 

they patrol that they are not even governed by the same laws or consequences. In order to 

rehabilitate police-community relations and re-instill faith in officers as community guardians, it 

is crucial that unions support programs geared towards eliminating racial prejudices, as well as 

educating officers on de-escalating hostile situations before using force as an absolute last-resort 

measure.958 Unions should support and encourage the officers who hold each other accountable 

and honor those who invest in building community trust. 

Police and their unions have a legitimate concern when reforms are developed without their input. 

In my work over the years on racial profiling, I have observed that there is often a gap between 

police chiefs and the police on the beat. Community stakeholders need to understand that for real 

change to happen, everyone needs to be at the table having candid and hard conversations. It is not 

enough to get the police chief on board. 

At our hearing in New York, Ellen Scrivener, Deputy Director of the Police Foundation, observed: 

I've had a lot of experience of sitting down at the table with all the stakeholders 

from the community and the line officers, the officers who were working in that 

community, not just the police chiefs or the supervisors or the captains. I think you 

heard Sean Smoot talk early today about the union needs to be at the table. If you're 

going to have buy-in, that's pretty critical, and I will tell you right now, initially 

those meetings can be very uncomfortable. Nobody trusts each other. Nobody really 

likes each other, but over time they start to build up some respect for one another's 

position because they begin to realize that they're all after the same thing. They 

want safe neighborhoods and neighborhoods where people can see their kids 

playing out in the street or they can walk to the grocery store without worrying 

about being shot or harassed by police, and so as they start to learn that from each 

 

955 Andrew Cohen, “How Bad Apples Spoil the Whole Bunch,” Marshall Project, Sept. 27, 2017, 

https://www.themarshallproject.org/2017/09/27/how-bad-apples-spoil-the-whole-bunch. 956 Ibid. 957 Julian Sanchez, “When Corruption is a Job Perk,” Cato Institute, Jan. 22, 2018, https://www.cato.org/blog/whencorruption-job-perk-0. 

958 See Commission Report, Findings: Training. 
176 Police Use of Force 

other, you see a lot more engagement. When I talked earlier about collaborative 

engagement, that's not just a nice term. That really means we're going to work 

together. This is not cooperation. This is not coordination. This is you and me 

working together to create something that's going to make it better for all of us, and 

it takes some time to get there, but that was really a foundation of community 

policing, and once that starts to happen, then you will see change begin to occur 

and we were seeing it all over the country really but then things changed, 

unfortunately. Really it hadn't gotten the roots that it needed, and hopefully we can 

try to re-root it.959

Some conservatives take a dim view of the federal government and, in particular, the role of the 

Department of Justice, in interceding in what they view as local prerogatives. In fact, as we heard 

at our hearing,960 and as many chiefs of police who seek to modernize their approach to policing, 

have said, the Department of Justice has an important role to play. The Department of Justice, 

Office of Community Oriented Policing Services (COPS Office) supports community policing 

through information, resources, technical assistance, and grant programs.961 Numerous police 

chiefs have also stated at a PERF roundtable discussion that the threat of Department of Justice 

litigation actually can open doors to conversations that otherwise would not take place. 

 Then-Commissioner of the Philadelphia Police Department, Charles Ramsey (also 

former D.C. Chief of Police): 

The process of having a consent decree can actually be a benefit to your department. 

You can leverage the Justice Department to get some things that you desperately 

need. When I was chief at the Metropolitan Police Department in Washington, we 

would not have been able to make the changes we made without the consent decree. 

We would have encountered pushback from the union, and we would not have 

obtained the funding needed to develop an early intervention system and underlying 

technology infrastructure to support it. 

The end result was very positive. Shootings dropped by 80 percent and have 

remained low. And it gave us credibility with the public.962

 Elizabeth Township Police Chief Bob McNeilly: 

A couple of months after I became chief in Pittsburgh, the Department of Justice 

showed up and took a lot of boxes of paperwork back to Washington, D.C. When 

they announced their desire to enter into a consent decree, it seemed intimidating 

at first. But I could see that they opened a door for me that my labor union had 

 

959 Briefing Transcript at 285-88. 960 Briefing Transcript at 288-90 (Ellen Scrivner discussing evolving role of the Department of Justice). 961 See Commission Report at notes 140-41 (discussing positive impact of COPS office on the Law Vegas 

Metropolitan Police Department). 

962 Police Executive Research Forum, Civil Rights Investigations of Local Police: Lessons Learned, supra note 553 

at 34. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 177 

closed. And the door they opened included funding and political support for all my 

initiatives for the department.963

John Farmer, Executive VP and General Counsel, Rutgers University: 

Our Consent Decree Gave the Reform Process Momentum Without the force of a 

court order behind us, I doubt we would have obtained the funding that we needed 

from the state, over a sustained period of time, to develop the systems that the New 

Jersey State Police put in place to ensure internal transparency. I think the process 

was a help to us. We did not put anything in place that we were not going to do 

eventually in any case. But putting the force of a court order behind it created a 

momentum that would not have otherwise existed.964

PERF and the members of the law enforcement community and other stakeholders who worked 

on PERF’s 30 Guiding Principles on the Use of Force965 should be commended for digging into a 

topic fraught with emotion and controversy and for seeking to build a safer more effective vision 

of community policing for the 21st century. 

MENTAL HEALTH 

As our report highlighted, too often, fatal police interactions involved “individuals with 

psychological, emotional, or physical disabilities,”966 largely because police were unaware on how 

to identify disability and how to address the situation. For example, police often misunderstand 

the body language and facial expressions of deaf people and resort to using force on them.967 To 

combat this problem, training on how to interact with persons with mental health needs or other 

disabilities is absolutely critical.968 The police and community should be willing to invest in the 

cost of the training and ensuring there are enough police hired to make it possible for everyone in 

the force to take the time for regular training. 

The police and the community have a shared interest in not only ensuring that encounters between 

officers and persons with mental health problems remain safe, but also getting at the root of the 

problem—the need to invest in mental health facilities and services. Community advocates know 

that funding mental health services will keep people with mental health needs from cycling through 

jails and emergency rooms.969 Investing in mental health services will also restore “police work to 

 

963 Ibid. at 35. 964 Ibid. 965 Police Executive Research Forum, Guiding Principles on Use of Force, supra note 28. 966 Commission Report at notes 51. 967 See Lewis Statement at 3-4. 968 See Commission Report, Findings: Training, Finding 2; Recommendations, Recommendation 6.b. iii-iv 

(promoting and funding partnering with mental health organizations and training on crisis intervention). 

969 See, e.g., Mark Cook, “For Mental Illness, Community Resources are More Effective Than Jail,” ACLU of 

Washington, Dec. 18, 2015, https://www.aclu-wa.org/blog/mental-illness-community-resources-are-more-effective-
178 Police Use of Force 

a better balance of community building and protection” and aid in recruitment. 970 Concern for 

police officers potentially or actually being charged for unlawfully shooting a person with a mental 

illness has prompted police unions to argue for more funding mental health programs.971 And as 

Louis Dekmar, the president of the International Association of Chiefs of Police, stated, “The real 

story is the failure of the mental health system. There’s just not a large political constituencies for 

the mentally ill, unless law enforcement or family members advocate.”972 Tackling this problem 

provides a great opportunity for police leadership and their unions to work together with concerned 

communities. 

The dearth of in-patient treatment options for persons with mental illnesses973 has led to police too 

often assuming the role of first responders to an individual suffering a mental health crisis.974

Police are, in effect, asked to do more with less funding and inadequate training when answering 

calls involving people with mental health challenges. And without the training needed to prepare 

law enforcement for this responsibility, police have reacted with force in situations where it was 

unwarranted, mistaking “behaviors associated with disability” with threats to their safety and 

authority.975 

The combination of a large population of people suffering from inadequately treated mental health 

problems and some police departments inadequately prepared to respond to such emergencies has 

resulted in the disproportionate use of force against persons with disabilities, with around 25% of 

all police killings targeted against people with mental health problems.976 While some departments 

have recognized the need to properly educate their officers on mental illnesses and how to act in 

interactions with persons undergoing a mental health crisis, the necessary training has by no means 

been universally implemented.977 A majority of departments that do have education programs only 

require 8 hours for mental health training, compared to 58 hours mandated for firearms training.978

The Department of Justice can help by working with law enforcement to convene mental health 

experts, disability advocates, police unions, and police chiefs to identify effective trainings and 

 

jail (arguing for community-based resources to prevent people with mental illnesses from going to jail or emergency 

rooms). 

970 See, e.g., Editorial Board, “Investments in Mental Health and Addiction Treatment Can Help Police Shortage,” 

Bangor Daily News, March 27, 2018, https://bangordailynews.com/2018/03/27/opinion/editorials/investments-inmental-health-and-addiction-treatment-can-help-police-shortage/. 

971 Valerie A. Canady, “Officers Call for Federal Intervention to Address MH System,” Mental Health Weekly, July 

24, 2017, https://onlinelibrary.wiley.com/doi/full/10.1002/mhw.31129. 972 Caroline Carballeria, “Police Unions Join Forces to Rally for Mental Health Reform,” NBC10, Aug. 24, 2017, 

https://www.nbcphiladelphia.com/news/national-international/Police-Unions-Mental-Illness-Policy-Reform440784533.html. 

973 Samantha Raphelson, “How the Loss of U.S. Psychiatric Hospitals Led to a Mental Health Crisis,” NPR, Nov. 

30, 2017, https://www.npr.org/2017/11/30/567477160/how-the-loss-of-u-s-psychiatric-hospitals-led-to-a-mentalhealth-crisis. 

974 Commission Report at notes 51-52. 975 Ibid. at notes 53. 976 Ibid. See also Julie Tate, et al., “Fatal Force,” supra note 265. 977 Commission Report at notes 136 (In 2016, only 15 percent of police jurisdictions have crisis intervention training 

programs in place). 

978 Commission Report at notes 134. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 179 

trainers and help develop best practices.979 Congress can help by appropriating funding to enable 

more law enforcement to be trained at a more rapid pace as well as by working to address the crisis 

in mental health funding and support systems.980 

It took the deaths of many people and the advent of cell phone cameras to expose the too frequent 

unjustified and unaccountable uses of force. Recent protests are not the first to call for reform. 

More than fifty years ago, people were outraged by images of police officers beating black 

protesters at Selma,981 just as they were outraged in 1991 by footage of officers beating Rodney 

King in Los Angeles,982 and just as they were outraged in 2014 by reports of the police shooting 

of Michael Brown in Ferguson.983 This problem of excessive police use of force is not a new one, 

but that does not mean the issue is unsolvable. 

Some police departments have begun to make the changes necessary to rebuild community trust 

by implementing key reforms and training. Congress as well as state and local governments can 

and should provide the resources to departments to make reforms and provide training. And the 

Department of Justice can help foster and disseminate best practices, provide technical assistance 

and help facilitate the necessary discussions among stakeholders and hold accountable police 

departments whose practices violate modern policing principles. No more lives should be lost 

before meaningful change happens, and before communities of color and law enforcement become 

partners in building safe and vibrant communities. 

 

 

979 U.S. Government Accountability Office, Federal Law Enforcement: DHS and DOJ are Working to Enhance 

Responses to Incidents Involving Individuals with Mental Illness, 2018, https://www.gao.gov/products/GAO-18-229 

(describing ongoing federal law enforcement efforts to respond to incidents involving individuals with a mental 

illness). 

980 See Carballeria, “Police Unions Join Forces to Rally for Mental Health Reform,” supra note 972 (police calling 

for Congress to fund the 21st Century Cures Act, which funds police training on identifying and responding to 

incidents involving persons with mental health disorders, among other provisions). 

981 Christopher Klein, “Remembering Selma’s ‘Bloody Sunday,’” History, March 6, 2015, 

https://www.history.com/news/selmas-bloody-sunday-50-years-ago. 

982 Nicole Flatow, “What Has Changed About Police Brutality in America, from Rodney King to Michael Brown,” 

ThinkProgress, Sept. 11, 2014, https://thinkprogress.org/what-has-changed-about-police-brutality-in-america-fromrodney-king-to-michael-brown-e6b29a2feff8/. 

983 BBC News, “Ferguson Unrest: From Shooting to Nationwide Protests,” BBC, Aug. 10, 2015, 

https://www.bbc.com/news/world-us-canada-30193354. 
180 Police Use of Force 

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Commissioners’ Statements, Rebuttals, and Surrebuttals 181 

Statement of Commissioner Gail Heriot 

In the Jim Crow South, one of the most severe problems faced by African-American communities 

was that many law enforcement officers just didn’t give a damn. Swedish sociologist and Nobel 

Laureate Gunnar Myrdal exposed their neglect in his influential 1944 book, An American 

Dilemma: The Negro Problem and Modern Democracy:

 984 

It is part of the Southern tradition to assume that Negroes are disorderly and lack 

elementary morals, and to show great indulgence toward Negro violence and 

disorderliness “when they are among themselves.” . . . As long as only Negroes are 

concerned and no whites are disturbed, great leniency will be shown in most cases. 

This is particularly true in minor cases which are often treated in a humorous or 

disdainful manner. The sentences for even major crimes are ordinarily reduced 

when the victim is another Negro. Attorneys are heard to plead [to] juries: “Their 

code of ethics is a different one from ours.” 

The leniency in punishment of Negro crime against Negroes has repeatedly been 

pointed out . . . by white Southerners as evidence of the friendliness of Southern 

courts toward Negroes.985 . . . Yet the Southern Negro community is not at all happy 

about this double standard of justice in favor of Negro offenders. Law-abiding 

Negroes point out that there are criminal and treacherous Negroes who secure 

immunity from punishment because they are fawning and submissive toward 

whites. Such persons are a danger to the Negro community. Leniency toward Negro 

 

984 Gunnar Myrdal, II An American Dilemma: The Negro Problem and Modern Democracy 551 (1944). 985 Myrdal wrote that he could personally attest to a few cases of a white upper class person obtaining a lenient 

sentence for an African American accused of a crime against another African American. Myrdal at ch. 26, note 15. 

He also quotes as an example of Southern attitudes Progressive reformer Edgar G. Murphy, who wrote in 1904: 

“‘Petty crimes are often forgiven him, and in countless instances the small offences for which white men are quickly 

apprehended are, in the negro, habitually ignored. The world hears broadly and repeatedly of the cases of injustice, 

it hears little of those more frequent instances in which the weaknesses of a child-race are accorded only an amused 

indifference or a patient tolerance by their stronger neighbors.’” Edgar G. Murphy, Problems of the Present South 

176 (1904), quoted at Myrdal, ch. 26, note 16. 

Myrdal quotes a letter he received from a white lawyer in the Upper South: “... I have noted that cases between 

Negro and Negro are handled somewhat differently than cases between white and white. I mean a spirit of levity, an 

expectation of something ‘comical’ appears to exist. The seriousness in the white vs. Negro case is decidedly 

lacking. As you know, it is a rare case indeed in which a Negro who has murdered a Negro receives the extreme 

penalty, either death or life imprisonment here, regardless of the facts. Only the other day in a local case a Negro 

who murdered another with robbery as motive, a charge that would have been as between white and white, or Negro 

and white victim, good for the electric chair, was disposed of by a jury with a 15-year sentence. The punishment as 

between Negro and Negro, as distinguished from white vs. white, or Negro vs. white victim, is decidedly different 

and clearly shows the racial approach to the question. In short the court-room feeling is that the Negro is entirely 

inferior, with punishment for crimes by him against his own kind punished with less punishment than when the 

white man in involved.” Letter of June 19, 1940 in Myrdal at ch. 26, note 14. 
182 Police Use of Force 

defendants in cases involving crimes against other Negroes is thus actually a form 

of discrimination. 

It’s difficult to see how people could have thought this kind of neglect was “friendly” toward 

African Americans. No government function is more important than protecting citizens from 

crime. For law enforcement authorities to leave one part of the population without the full 

protection of the law was not the least bit “friendly.” It was a travesty.986 

With the passage of the Voting Rights Act of 1965, ignoring the victimization of African 

Americans was no longer something local governments could do without fear of retaliation at the 

ballot box. Things therefore got better. But not enough better. During the 1960s and 1970s new 

approaches to crime and law enforcement were being discussed and experimented with across the 

country. Alas, much of it was wrongheaded. A good example is Karl Menninger’s 1966 The Crime 

of Punishment, which argued that all punishment is cruel and useless and that criminal behavior 

should instead be treated as mental illness. As Menninger saw it, those who asked us to spare a 

thought for the victims were being “melodramatic” and “childish” and appealing only to the 

“unthinking.”987

To read Menninger today is itself punishment. Here’s a sampling: 

I suspect that all the crimes committed by all the jailed criminals do not equal in 

total social damage that of the crimes committed against them.988

And there is one crime we all keep committing, over and over. . . . We commit the 

crime of damning some of our fellow citizens with the label “criminal.” And having 

done this, we force them through an experience that is soul-searing and 

dehumanizing.989 

 

986 Yet one doesn’t hear much about it today. Instead, the law enforcement issue we tend to learn about from 

history is the practice of lynchings. Lynch mobs were indeed a horrific problem that deserves to be discussed, but 

lynch mobs were by no means the only crime-related problem for African American communities in the Jim Crow 

South. It isn’t even clear they were the most important problem. Without close examination of the historical record, 

it is impossible to say which caused the greater harm to African American communities: lynch mobs or law 

enforcement officers who don’t care about the safety of entire communities. Fortunately, there is no need to decide: 

They were both horrors. 

These days school children tend to come away with the impression that lynching was overwhelmingly a Southern 

practice and that it was used against African Americans exclusively or nearly so. But lynching was a frequently 

used practice in the West as well, where African Americans were by no means the only victims. See Ken GonzalesDay, Lynching in the West: 1850-1935; Lisa Arellano, Vigilante and Lynch Mobs: Narratives of Community and 

Nation (2012); Stephen J. Leonard, Lynching in Colorado 1859-1919 (2002). 

987 Karl Menninger, The Crime of Punishment 9 (1966). 988 Ibid. at 28 (italics in original). 989 Ibid. at 9. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 183 

The inescapable conclusion is that society secretly wants crime, needs crime, and 

gains definite satisfactions from the present mishandling of it! We condemn crime; 

we punish offenders for it; but we need it. The crime and punishment ritual is a part 

of our lives. We need crimes to wonder at, to enjoy vicariously, to discuss and 

speculate about, and to publicly deplore. We need criminals to identify ourselves 

with, to secretly envy, and to stoutly punish. Criminals represent our alter egos—

our “bad” selves—rejected and projected. They do for us the forbidden, illegal 

things we wish to do and, like scapegoats of old, they bear the burdens of our 

displaced guilt and punishment—“the iniquities of us all.”990 

As Menninger’s and similar views become common among policymakers, incarceration rates 

dipped, while crimes rates soared, especially in African-American neighborhoods in large cities.991

Meanwhile, he was given many honors, including the Presidential Medal of Freedom by President 

Jimmy Carter.992 

Were African Americans of that era as keen as Menninger and his disciples on reducing the level 

of incarceration for criminal wrongdoing? In Black Silent Majority: The Rockefeller Drug Laws 

and the Politics of Punishment, Professor Michael Javen Fortner demonstrates that most were not. 

In the Preface to the book, Fortner makes it clear that his interest in the subject stems in part from 

his own experience growing up in Brownsville, Brooklyn. In response to suggestions that the 

dominant response to crime of African Americans of that era was “a sense of sympathy for and 

empathy with the perpetrators,” Fortner states bluntly: “[T]hat’s not what I heard. . .. I remember 

black folks constantly worrying about keeping their children, homes, and property safe.”993 

Fortner’s book, however, is not a memoir. Rather, it meticulously documents that while African 

Americans were not at all monolithic on crime-related issues, large numbers of African Americans 

opposed liberal policies that emphasized lenience and therapy rather than prison time. As early as 

1970, in a survey of 2000 urban black households, respondents were asked whether “[keeping] 

offenders off the Street and in jail” would help in curbing the crime problem. Over 80% indicated 

 

990 Ibid. at 153 (italics in original). 991 At the same time the number of psychiatric inpatients declined precipitously from a high of over 550,000 in 1950 

to around 30,000 by the 1990s. Megan Testa and Sara G. West, Civil Commitment in the United States, 7 Psychiatry 

(Edgmont) 30, 33 (Oct. 2010). As a result, many of those who in an earlier day would have been institutionalized in 

psychiatric hospitals wound up in prisons instead or on the street. Estimates of exactly how many vary widely. Seth 

J. Prins, The Prevalence of Mental Illnesses in U.S. State Prisons: A Systematic Review, 65 Psychiatr. Serv. 862 

(2014). But today’s incarceration rates are surely influenced by the near absence of psychiatric inpatients in the 

American systems. This makes incarceration rate comparisons with other countries where psychiatric inpatients are 

more common hopelessly flawed. 

Menninger very much favored the de-institutionalization of psychiatric inpatients. Interestingly, that deinstitutionalization and the corresponding incarceration of many mentally ill individuals created common ground 

between the average American and Menninger: There are certainly some prisoners today who would be more 

effectively dealt with as psychiatric patients. 

992 Karl Menninger, 96, Dies; Leader in U.S. Psychiatry, N.Y. Times (July 19, 1990). 993 Michael Javen Fortner Black Silent Majority: The Rockefeller Drug Laws and the Politics of Punishment x-xi 

(2015). 
184 Police Use of Force 

that it would be “very helpful” or “somewhat helpful.” A near majority also agreed that “tougher 

police policies” would be a good thing.994 

Polling data in this context has obvious limitations. More important, Fortner shows that during the 

1970s, African-American grassroots leaders in New York pushed for more intervention from the 

police, not less. Among the many statements and events he discusses to support his point is a wellattended public hearing on crime held at Harlem’s Salem Methodist Church. The hearing was 

opened with these words by the chairman of the Harlem Youth Opportunities Unlimited and 

Associated Community Teams (HARYOU-ACT): 

I charge the Mayor and the Police Commissioner with gross neglect of our 

community in failing and refusing to provide adequate police protection to Harlem 

as they do to white areas. This neglect is criminal. Perhaps 200,000 angry black 

residents will have to march on City Hall and Police Headquarters to protest this 

criminal neglect, and to say to the Mayor and the Police Commissioner just how 

angry we are, to provide equal protection for our law-abiding citizens who are daily 

being mugged, raped, assaulted, molested and killed by a small but effective band 

of criminal who have made us prisoners in our own homes.995

Sometimes leaders went beyond pushing for more police protection. On a different occasion, 

Waldaba Stewart, an African-American state senator from Brooklyn, argued for vigilantism: “If 

[the crime problem] is bigger than police then we must organize vigilante operations and arm 

ourselves in defense of our home, our families, and our children. . . . I have reached the place 

where I am on the verge of being the leader of the proposed vigilante group. . . .I don’t want to—

but something has to be done.”996 

Others argued against vigilantism, but nevertheless in favor of strong police 

measures. Fortner writes, for example: “Vincent Baker, author of the 1969 NAACP 

crime report that embraced the death penalty and stop-and-frisk, among other 

punitive strategies, regretted that there ‘is an embryonic vigilante movement in this 

community. It’s cropping up all over. Tenant groups are arming themselves.’ While 

he recognized a feeling of ‘anarchy and complete helplessness against marauding 

hoodlums,’ Baker considered such efforts anathema to his ‘law and order’ 

campaign. . ..”997 

Fortner shows that African Americans provided crucial grassroots political support for Governor 

Nelson Rockefeller’s get-tough drug laws, which had been vehemently opposed by white 

“reformers”: 

Empowered by their newly won civil rights, members of the black silent majority 

vigorously battled King Heroin and reconfigured the politics of drug policymaking 

 

994 Id. at 155. 995 Id. at 188-89. 996 Id. at 187. 997 Id. at 188. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 185 

in New York State. Working- and middle-class African Americans exploited old 

organizational forms and founded a multitude of new committees and groups. They 

met, protested, and lobbied to combat the problems of drug addiction, drug 

trafficking, and crime in their neighborhoods. . .. With banners and bands, picket 

signs and bullhorns, leaders of block association, church groups, women’s groups, 

fraternal organizations, and Democratic clubs took to the streets to demand more 

police, shame addicts, call out pushers, and upbraid white and black leaders for 

their perceived unresponsiveness. . ..998

Changing the drug laws in New York did not immediately put a dent in crime rates nationwide 

(and I will leave it to others to judge whether it was a significant factor in controlling crime in New 

York). But there is no doubt that it was a significant part of the crime-fighting agenda of AfricanAmerican leaders in New York at the time. In an opinion piece in the New York Law Journal, 

Charles Rangel, the Member of the U.S. House of Representatives from Harlem, called for 

President Nixon to wage war on the drug trade here and abroad.999 Rangel, with the full support of 

the Black Caucus, was a leading voice in Congress for get-tough drug legislation at the national 

level into the 1980s. Nevertheless rates of violent crime did not peak until the early 1990s.1000 

The good news is that violent crime has decreased dramatically since that time. This has 

benefited everyone, but it has especially benefitted African Americans. When law-abiding 

people don’t need to be constantly worrying about crime, they can spend their time achieving 

their own goals instead. Instead of staying home after dark, they can take a course in accounting 

at the local community college. They can earn money for a down payment on a house by 

working a part-time job at a local shopping mall. Instead of spending money to put bars on their 

windows, they can buy a used car that will get them to an out-of-the-way work site where the 

pay is better. They can have a picnic in the park. They can get to know their neighbors. 

Whole neighborhoods blossom when crime goes down. People start to feel more comfortable 

coming out at night, and once they come out their presence reduces crime even further. Businesses 

are formed—restaurants, stores, and hair salons. It becomes a virtuous circle where things get 

better and better. I’ve seen it myself in and around the neighborhoods in which I’ve lived and 

worked—from the South Side of Chicago to Northeast Washington to City Heights in San Diego. 

Small differences between living and working in a safe place and a not-so-safe one must be 

multiplied by the millions of individuals who benefit. The result has been an overwhelming change 

for the better. Every day individuals of all races and ethnicities are added to the middle class—

maybe not as quickly as we’d like—but they get added. They succeed. Every day the black middle 

class in particular gets larger. 

The reasons for this steep decline in crime since are complex. Some of it is that the average 

American is a little older than in 1990. Violent crime is largely a young person’s game. (Is it wrong 

 

998 Id. at 212-13. 999 Charles B. Rangel, Addiction Epidemic in Harlem, New York Law Journal (July 6, 1971). 1000 See Steven D. Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and 

Six that Do Not, 18 J. Econ. Perspectives 163, 166 (2004). 
186 Police Use of Force 

for a member of the U.S. Commission on Civil Rights to point out that young people commit more 

violent crimes than older people? Of course not.) Some of it is that crime-solving technologies and 

other law enforcement techniques have improved. But a large reason is people of all races and 

communities got fed up and saw to it that our public policies changed. As a nation, we made the 

decision to use incarceration more often than we had in the 1960s and 1970s, not just for drug 

offenses, but for all offenses, particularly violent ones. We hired more police officers.1001

Menninger’s notion that the dominant response to crime should be therapeutic lost favor. 

We haven’t exactly reached the Promised Land. There is still plenty of crime in the country, and 

lives continue to be ruined on account of it. The number of violent crimes today is roughly twice 

what it was in 1960 per 100,000 persons. And, of course, the financial cost and social cost of 

incarceration should not be ignored in evaluating our present position. 

Significantly, especially for this Commission, it remains the case that African Americans are, on 

average, more likely to be victimized by crime than others. For example, while African Americans 

are only about 13%1002 of the population, they are about 43% of the murder victims1003 and 22.4% 

of the victims of violent crimes generally.1004 

Why then aren’t African Americans still demanding greater police protection? A significant part 

of the answer is that they are. As Heather Mac Donald stated in her written testimony to the 

Commission: 

Go to a police community meeting in Harlem, the South Bronx, or Central 

Brooklyn, and you will invariably hear some variant on the following requests: “We 

want the dealers off the corner.” “You arrest them and they’re back the next day.” 

“There are kids hanging out on my stoop, why can’t you arrest them for loitering?” 

“I smell weed in my hallway, can’t you do something?” I met an elderly cancer 

amputee in the Mount Hope section of the Bronx who was terrified to go into her 

lobby to get her mail because of the youth hanging out there trespassing and selling 

drugs. The only time she felt safe was when the police were there. “Please, Jesus,” 

she said, “send more police!”1005

There is certainly no reason to believe that Mac Donald’s observation applies only to New York. 

My strong suspicion is that requests for more police protection—from people of all races—are 

made at community meetings with police in Chicago, Oklahoma City, and Santa Ana and indeed 

in every city. They just don’t seem to make the news. 

 

1001 See Steven D. Levitt, Understanding Why Crime Fell in the 1990s: Four Factors that Explain the Decline and 

Six that Do Not, 18 J. Econ. Perspectives 163, 184 (2004). 1002 United States Census Quick Facts, available at https://www.census.gov/quickfacts/fact/table/US/PST045217 

(giving % of population that is black or African American only.) 1003 FBI: Uniform Crime Reporting, “2015 Crime in the United States,” supra note 106. Figures for recent past years 

are extremely similar. 

1004 Crime Victimization, 2014, Bureau of Justice Statistics, available at 

https://www.bjs.gov/content/pub/pdf/cv14.pdf (August 2015, rev. September 29, 2015)(App. tbl. 6). 

1005 Written Testimony of Heather Mac Donald, 3-4. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 187 

Maybe that is in part a consequence of the decline of journalism, particularly at the local level. Not 

many of the dwindling number of reporters left on the local beat can spend their time at community 

meetings with police. There just aren’t enough of them left on the payroll. Instead, too often, 

reporters have to let the news come to them. News ends up being constructed out of press releases. 

If you don’t have a publicist working for you, your story may not get told. 

Meanwhile more and more of our news comes from organizations and foundations that function 

at the national rather than the grassroots level. It therefore gets filtered, sometimes consciously but 

more often unconsciously, to suit the goals of those organizations and foundations and the 

individuals who run them.1006 Big stories sometimes get missed entirely.1007 

The same is true of political activism more generally. Activism guided by national organizations 

and foundations is different from grassroots activism. Their leaders tend to be college graduates 

whose experiences are very different from the typical American’s or from the kind of individuals 

they are trying—usually in good faith—to represent. Inside-the-beltway civil rights organizations, 

for example, tend to be staffed by lawyers and other professionals who have never lived in a highcrime neighborhood. Issues like voting law and affirmative action at the college and university 

level tend to be of great importance to them. And it is understandable why this would be so. They 

themselves have benefited from a college education, and they see that experience as crucial to their 

own success. The fact that their organizations are located in or near the nation’s capital suggests 

that their work tends to include lobbying Congress. For lobbyists, getting to right people elected 

to office is generally a prime concern. 

Such organizations have the resources to draw a newspaper’s or radio station’s attention to a need 

for increased police protection if they so desire. But it is not the kind of story to which they are 

likely to give priority. It also invites the question, “Why are African Americans victimized at such 

high rates?” That inevitably leads to the answer that, for a variety of demographic, historic and 

economic reasons, African Americans are not just disproportionately the victims of violent crime, 

they are also disproportionately likely to commit violent crimes. That’s a story these organizations 

may be reluctant to tell.1008

 

1006 Hal Pashler & Gail Heriot, Perceptions of Newsworthiness are Contaminated by a Political Usefulness Bias, 5 

Royal Soc. Open Sci.172239 (2018). 1007 Raise your hand if you are a college graduate who resides inside the beltway and you accurately predicted well 

before Election Day that Donald Trump would be elected President of the United States in 2016. A significant 

number of those who read this report will fall into that basic demographic. Only a tiny number of them saw the 

2016 election returns coming. This is what I mean when I say that big stories sometimes get missed entirely. 

1008 What are those reasons for that reluctance? One of them is likely the understandable fear that when this fact is 

brought up, it will cause listeners to be less sympathetic with all African Americans. Of course it shouldn’t. 

Americans pride themselves on their ability to judge people as individuals. But one can sympathize with the 

reluctance of civil rights organizations to dwell on the negative. 

Another reason may be related to socio-economic class. In general, the individuals who set priorities for civil rights 

organizations are fairly well off. They often don’t live in the neighborhoods that are hardest hit by crime and may 

not identify as closely with the victims of crime as someone who does. 
188 Police Use of Force 

Yet it’s a true story, and it is important to discuss criminal justice issues with our eyes open. 

According to FBI statistics, 52% of all homicides between 1990 and 2008 were committed by 

African Americans.1009 In 2013, the figure for robbery is 66.9% and for kidnapping/abduction, 

37%.1010 

Part of it is that African Americans are, on average, younger than whites. Another part is that 

African Americans are more likely to be low-income or unemployed. But those factors don’t 

account for all of difference in crime rates. Part of it, no doubt, has to do with African Americans’ 

unique history in this country. We live in a complex world, but it is ordinarily better to face those 

complexities head on rather than ignore them. 

It is worth noting that African Americans were not the first ethnic group to come along with higher 

than average rates of social pathologies (nor are they the only such group now). One hundred and 

fifty years ago, it was Irish Americans.1011 That changed. There is no reason that African 

 

On the other hand, I suspect few things are as infuriating for an African-American professional as being pulled over 

by a police officer for no apparent reason. This could make it easier for them to identify with what is no doubt a 

very real experience: Law abiding African Americans, especially young men, essentially have a “tax” levied upon 

them because of their skin color. 

1009 See Alexia Cooper and Erica Smith, Homicide Trends in the United States, 1980-2008, Bureau of Justice 

Statistics (November 2011), https://www.bjs.gov/content/pub/pdf/htus8008.pdf. 

1010 See Offenders Race by Offense Category, 2013, https://ucr.fbi.gov/nibrs/2013/table-pdfs/offenders-race-byoffense-category-2013. 

1011 These days to be Irish American is to be a member of the “majority.” But it was not always thus. Irish 

immigrants and the first few generations of Irish Americans had a difficult time. 

Direct comparisons between the histories of African Americans and of Irish Americans are not possible. But by all 

accounts, nineteenth-century Ireland—from which Irish immigrants to this country fled by the boatloads—was a 

remarkably dismal place even before the Great Potato Famine. As Gustave de Beaumont, traveling companion to 

Alexis de Tocqueville, wrote in the 1830s: “I have seen the Indian in his forests and the Negro in his chains, and 

thought, as I contemplated their pitiable condition, that I saw the very extreme of human wretchedness; but I did not 

know then the condition of unfortunate Ireland.” See Andrew M. Greeley, That Most Distressful Nation: The 

Taming of the American Irish 34-35 (1972). 

With the famine, things took an almost unimaginable turn for the worse in Ireland. In a remarkably short period of 

time, the potato, Ireland’s staple crop, essentially disappeared. One and half million, half-starved souls were cast 

upon American shores in the years between 1845 and 1855. And these were the lucky ones. Out of Ireland’s 

population of eight million, one million died. 

When these immigrants got off the boat, most were illiterate, unskilled and ill-equipped for urban life. Not everyone 

sympathized with their plight. Friedrich Engels, who fancied himself a champion of the workingman, regarded the 

Irish immigrant to Great Britain as having a “crudity” that “places him little above the savage.” For work requiring 

skill or patience, Engels complained, “the dissolute, unsteady, drunken Irishman is on too low a plane.” Here in 

America, many agreed with Engels. “No Irish” signs went up. 

I would like to be able to say that each and every Irish American struggled heroically against all these obstacles, 

refusing to let his or her dignity or sense of responsibility flag for even a moment. Of course, that would be true of 

some of them. But not everyone is a hero. That why most of us should thank our Creator that circumstances have 

never put us to the test; real human beings can be disappointing. Irish neighborhoods had more than their share of 

crime, prostitution, and other urban pathologies. Family abandonment was more common among the Irish than 
Commissioners’ Statements, Rebuttals, and Surrebuttals 189 

Americans or any other group should remain marginalized forever. The process of integration into 

the mainstream has been well underway with African Americans for decades now. You wouldn’t 

know it from the wild statements that get made in the media, but slowly and sometimes fitfully, it 

has been working. 

All of this leads me to the point I want to make about the present debate over the criminal justice 

system. And by “debate over the criminal justice system,” I mean the debate over incarceration 

rates, police shootings, police practices in general, the death of Michael Brown, the Ferguson, 

Missouri riots, the Black Lives Matter movement, the death of Freddie Gray, the Baltimore riots, 

and much more. There is far too much one-sidedness in this debate. 

One of the best examples of this is the failure to acknowledge African American victimhood and 

the need to ensure that the African-American community receives adequate police protection.1012

 

among other immigrant groups at the time. And in 1914, more than a half century after the first great wave of Irish 

immigration, about half of Irish families living on the West Side of New York were still (for that and other reasons) 

without fathers. 

Yet despite all these difficulties, things worked out. A group that suffers from higher than average social 

pathologies today will not necessarily be the one that is still suffering later on. 

See, e.g., Thomas Sowell, Ethnic America: A History (1981); Patrick J. Blessing, Irish in The Harvard 

Encyclopedia of American Ethnic Groups 524-45 (Stephan Thernstrom, Ann Orlov and Oscar Handlin, eds.) (1980); 

Andrew M. Greeley, That Most Distressful Nation: The Taming of the American Irish (1972). 1012 Part of the one-sidedness stems from misinformation. Commissioner Kirsanow’s Statement in this report 

discusses the misinformation in connection with the death of Michael Brown—misinformation that led to riots. 

Unfortunately, it is not the only example of the epic effects of misinformation in this debate. 

Another example was the death of Trayvon Martin. This led to a panic over “Stand Your Ground” laws that has still 

not completely subsided. See Eliott C. McLaughlin and Amir Vera, Florida’s “Stand Your Ground” Law Is “a 

License to Kill Black People,” Attorney Says, CNN (July 25, 2018) available at 

https://www.cnn.com/2018/07/24/us/florida-stand-your-ground-fatal-shooting/index.html. 
190 Police Use of Force 

The debate has become surreal. 1013 No sensible policy decisions can be expected to arise out of 

such a corrupt discourse. 1014

I don’t doubt that there have been police abuses. In order to do their jobs, police officers must have 

power. Wherever there is power, there will be abuses of power. That is why it is important to avoid 

concentrating more power than is necessary in anybody’s or any institution’s hands (a topic that 

all Americans should think about regularly.) Fortunately, the overwhelming majority of police 

officers want to do their jobs right. (They would probably also like a little credit for the heroism 

that they must routinely engage in, and I cannot blame them for that.) 

I also don’t doubt that there are ways to improve police practices so as to better protect the rights 

of those suspected of crimes and of bystanders. There is always room for improvement. I am 

 

1013 Part of the one-sidedness stems from taboos. On November 27, 1993, the Rev. Jesse Jackson told an audience 

at a meeting of Operation PUSH in Chicago: “There is nothing more painful to me at this stage in my life than to 

walk down the street and hear footsteps and start thinking about robbery. Then turn around and see somebody white 

and feel relieved.” "We've got the power right now to stop killing each other,” Jackson said then. See Mary A. 

Johnson, Crime: New Frontier—Jesse Jackson Calls It Top Civil-Rights Issue, Chicago Sun-Times (November 29, 

1993)(quoting Jackson’s remarks at a meeting of Operation PUSH in Chicago on November 27, 1993). See also 

Mike Royko, Jesse Jackson’s Message Is Too Advanced for Most, Baltimore Sun (December 3, 1993). 

I recently ran across an exchange on an internet message board among several individuals. One asked whether 

Jackson had ever apologized for the statement. Another opined that Jackson meant it as a confession that even he 

could harbor racist thoughts and an illustration that such thoughts are wrong. See 

https://boards.straightdope.com/sdmb/showthread.php?t=559631. 

I can’t help but wonder if he or any other African-American leader would be able to make that statement again today 

without a deluge of criticism. 

1014 In the last few years, it has become fashionable among intellectuals to argue that our prison system is deeply 

racist. Michelle Alexander’s The New Jim Crow: Mass Incarceration in the Age of Colorblindness—a New York 

Times Bestseller—is a good example. In the book’s introduction, Alexander wrote that she had recently come to 

suspect that the criminal justice system “was not just another institution infected with racial bias but rather a 

different beast entirely.” “I came to see,” she wrote with a dramatic flair best reserved for fiction, “that mass 

incarceration in the United States had, in fact, emerged as a stunningly comprehensive and well-disguised system of 

racialized social control that functions in a manner strikingly similar to Jim Crow.” 

Hyperbolic rhetoric has always been fashionable among intellectuals. I suppose it helps sell books. A few things 

need to be said about Alexander’s claim: No one would deny that racism rears its ugly head in our criminal justice 

system from time to time. But any suggestion that it is “strikingly similar to Jim Crow” is wrongheaded. 

Those who suggest that racial disparities in arrests or incarceration are attributable in significant part to race 

discrimination should remember this: (1) If racial disparities in arrests were attributable to race discrimination, one 

would expect the worst disparities to occur in connection with minor crimes, where the chance of getting away with 

a false accusation is greatest. But the worst disparities are with murder, where the motivation for making a false 

accusation and the likelihood of getting away with one are at their lowest; (2) If racial disparities in incarceration 

were attributable to race discrimination, one would expect those disparities to be most pronounced in the state 

popularly viewed as most racist (i.e. the states of the old Confederacy); but precisely the opposite is true. Using the 

statistics provided by the Prison Policy Initiative, I calculated that Minnesota and Vermont are among the top five 

states in terms of racial disparities in rates of incarceration. Alabama and Mississippi are among the bottom five. 

See Leah Sakala, Breaking Down Mass Incarceration in the 2010 Census: State-by-State Incarceration Rates by 

Race-Ethnicity, Prison Policy Initiative (May 28, 2014), available at 

https://www.prisonpolicy.org/reports/rates.html. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 191 

particularly optimistic about the use of cameras by police. Cameras are not perfect solutions to any 

problem. But they are very important partial solutions. They protect both police officers and the 

public. They have an important role to play in creating trust between police officers and the public. 

Here’s another one: I don’t doubt that there may be ways in which the weight of our high 

incarceration rate can be lightened. I am not, however, optimistic that this can be done easily. I 

fear that those who believe that our incarceration rates can be significantly decreased without a 

corresponding increase in crime are being naïve. 

My real doubt is in the country’s present ability to enter into a thoughtful consideration of those 

issues. I am not hearing realistic discussions of the trade-offs involved. Until those discussions 

take place, I very much doubt that progress can be made. On the other hand, the likelihood that 

things can be made worse is very high. 

It’s not easy to insist both that police officers vigorously protect the public from crime and that 

they refrain from using force when they believe it is to be necessary for their own self-defense. 

Training is helpful, but all the training in the world will not resolve the underlying tension between 

those two aspirations. Instead, the more likely result is that police officers will avoid engaging 

with individuals they regard as dangerous. 

The decrease in crime over the last few decades has been an important achievement. Let’s not let 

it slip through our fingers.

ADDENDUM: 

In response to the Statements of my fellow Commissioners, let me add the following: 

I am not convinced that increased federal control over local police forces holds much promise 

except in the most egregious of cases. Seldom does adding layers and layers of bureaucracy on a 

problem improve it. Alas, the Commission does not have sufficient evidence to determine whether 

all or indeed any of the cases of federal intervention conducted by the Department of Justice mainly 

during the Obama Administration were justified. 

Chair Lhamon and Commissioner Narasaki are apparently of a different opinion. They praise the 

Department of Justice’s numerous interventions under Attorneys General Eric Holder and Loretta 

Lynch, while they chide the current Attorney General, Jeff Sessions, for following a policy of 

greater local control. 

The efforts under Holder and Lynch usually involved an urban police department that received 

attention in the media for a particular police shooting or for a higher than average number of police 

shootings in a particular year. The Department of Justice would investigate the police department, 

sometimes bringing a lawsuit and sometimes not. It would then negotiate an agreement with the 

targeted police department, which would become a consent decree in those cases for which a 

lawsuit had been filed or a collaborative reform agreement in those cases for which there was no 
192 Police Use of Force 

lawsuit. Even the advocates of such agreements agree that “there is no question [they] are arduous 

and complicated.”1015

A typical such consent decree is the 110-page Cleveland decree. It requires Cleveland to have a 

DOJ-approved Independent Monitor to enforce the decree as well as a 13-member Community 

Police Commission, which must issue reports at least annually). Members of the Commission will 

be selected by a specially-constituted selection panel and will work with the (apparently alreadyexisting) Community Relations Board and the District Community Relations Committees 

(renamed the District Policing Committees). The police department is also required to create a 

Force Investigative Team, a Mental Health Response Advisory Committee, a Force Review Board, 

and a Consent Decree Implementation Unit. Extensive training and recordkeeping duties were 

undertaken throughout the system. Put differently, layers and layers of bureaucracy were added. 

Chair Lhamon and Commissioner Narasaki argue for this in different ways. Both ways, however, 

leave me unconvinced. 

Chair Lhamon points to a graph that appeared in Vice News. The graph purports to show that, at 

police departments that have been subjected to DOJ consent decrees/collaborative reform 

agreements, the number of police shootings decreases. It further purports to show that at other 

police departments, the number has gone up and down with no clear net effect. 

There are many problems with this chart. For example: 

1. The Vice News article that the chart accompanies points out that the Department of 

Justice was invited to investigate Philadelphia precisely because it had high numbers of 

police shootings in a particular year. It is likely that, one way or another, many or most of 

the investigations were triggered by high numbers of shootings. If so, the chart is 

hopelessly flawed. 

This is essentially a question of mathematical probabilities. Imagine a casino at which 

100 gamblers operate 100 slot machines that randomly generate numbers 1 through 10. A 

number 10 is a big winner, while number 1 is a big loser. But whether one gets a 1 or a 

10 or something in between is purely a matter of chance; it says nothing about one’s skill 

as a gambler. Consequently, if one were to take all the gamblers who got a 1 in the last 

round and subject them to intensive training in “gambling science,” it would not improve 

their chances of winning one iota. Nevertheless, they would appear to have improved 

dramatically, since the group, which had been selected on the basis of their poor 

performance in the last round, can be expected to achieve an average score of 5.5. It is 

simply a matter of regression to the mean. Meanwhile, the other 90 gamblers (whose 

average score was likely around 6 in the last round) can be expected to decrease slightly 

in score to the same 5.5). 

 

1015 Sadie Gurman, Federal Overhauls of Police Departments Bring Mixed Results, Chicago Tribune (April 5, 

2017)(quoting Chuck Wexler, executive director of the Police Executive Research Forum), available at 

http://www.chicagotribune.com/news/nationworld/ct-federal-police-departments-overhaul-20170405-story.html. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 193 

This may fully account for the results in the chart cited by Chair Lhamon. 

2. Even if the decline in shootings is real rather than just the result of chance, it may be a 

bad sign rather than a good one. It may be a reflection of police disengagement (the 

“Ferguson effect”), which leaves high-crime neighborhoods less protected. 

3. Strangely, four of the thirteen consent decrees/collaboration reform agreements included 

in the chart did not occur until the very end of the time period considered on the graph. 

These consent decrees/collaborative reform agreements cannot have been responsible for 

any decrease in police shootings during the period considered in the graph. 

4. The article admits that the data for Philadelphia, the largest city subjected to a consent 

decree or collaborative reform agreement, largely drives the results. For all the reader can 

tell, it is the only city considered in the graph that managed to lower the number of police 

shootings. Because Vice News does not reveal the figures underlying its analysis, I cannot 

say for sure. 

Commissioner Narasaki argues that police officials often appreciate federal interventions and 

includes several quotations to that effect in her Statement. There are at least three things 

Commissioner Narasaki is missing here. First, when a powerful federal agency is investigating 

someone, it’s not uncommon for that someone to avoid complaining to the press. It may make 

them more vulnerable.1016 Second, local governance is complex. Some individuals within the local 

police bureaucracy may indeed appreciate federal interventions, because it gives them an 

advantage in the competition for local resources. If the police chief can go to the mayor and city 

council and say, “You must give us more resources, because our consent decree demands more 

resources,” that is a good thing from the standpoint of the police chief. But it is not a good thing 

from the standpoint of local control. The mayor and the city council were elected to make the tough 

choices about how to allocate the local taxpayers’ resources, not the police chief and not the 

Department of Justice.1017 Third, the Department of Justice sometimes dispenses its own funds, 

 

1016 Alas, this type of error is not uncommon. At a Commission briefing on federal government policy regarding 

bullying and harassment in K-12 schools, Russlyn Ali, the then-Assistant Secretary for Civil Rights at the 

Department of Education, testified about an OCR investigation that “Owatonna's superintendent, I'm pleased to say, 

said in the press when asked about this that the Office for Civil Rights, and we together with the Department of 

Justice, have made her school district better.” United States Commission on Civil Rights, Transcript of May 13, 

2011 Briefing at 11. As I said to her then, “You've got to remember that, at a school district, the worst thing in the 

world that can happen to them is to have a giant investigation, which is often what happens. I was a little troubled by 

your quoting the school district, school board member praising the Department. Remember, they're under your 

authority.” Id. at 18-19. 

 

1017 As a law professor, I sometimes see a similar dynamic at work in the accreditation process. A disinterested 

observer might expect that law schools and the law school accrediting agency to have an adversarial relationship. 

But in general they do not. Law schools often are pleased when the Accreditation Committee of the ABA Section of 

Legal Education and Admissions to the Bar requires them to make improvements. Those requirements can be taken 

to the central university and used to wrest greater resources for the law school. I strongly suspect the same dynamic 

is at work with medical schools, engineering schools and other components of universities as well as at police 
194 Police Use of Force 

which can make it very popular with local police chiefs. But that is how local control erodes, bit 

by bit. Federal control over the purse strings is not something to be celebrated. 

Moreover, for what it’s worth, I can quote several police officers and political leaders who do not 

favor these extensive interventions. 

In Seattle, for example, according to The Seattle Times, Mayor Mike McGinn warned the 

Department of Justice’s intervention could cost as much as $41 million per year. He said the plan 

would put vital services at risk and that the Independent Monitor would function as a “shadow 

mayor,” who could interfere with the city’s ability to respond quickly to events.1018 

New Orleans is similar. According to Chicago Tribune, the 2012 consent decree is expected to 

cost at least $55 million and requires rank-and-file police offices to complete time-consuming 

paperwork rather than patrol the community. 

Mike Glaser, president of the Police Association of New Orleans, has said that a relaxing of 

redundant oversight and reviews would help matters. More important, he has pointed out that 

excessive oversight can make officers more reluctant to act. They may think twice before 

approaching a suspicious person or making a traffic stop. Why make trouble for oneself? 

“‘I’m not going to say that happens to everybody categorically,’ Glaser said. ‘But if you don’t 

think that impacts the officer’s behavior, you’re naïve.’”1019 

And then there is the special case of Chicago, where the Obama Administration had not yet 

completed the process of negotiating a consent decree when the 2016 Presidential election 

intervened. The Illinois Attorney General Lisa Madigan intervened by filing a separate lawsuit and 

negotiating a separate consent decree. Kevin Graham, president of the Fraternal Order of Police 

there, said in a statement that the proposed consent decree “‘is politically motivated and threatens 

both public safety and the well-being of our members.” He excoriated the Illinois Attorney General 

for being unwilling to listen to police while being excessively willing to pay attention to “fiercely 

anti-police groups like Black Lives Matter and the American Civil Liberties Union.”1020 

Is it worth it to spend millions of dollars to bring an out-of-control police department of a major 

city under control (assuming it can be done in accordance with the rule of law)? Of course it is. 

 

departments being investigated by the Department of Justice. This is not evidence that the Department of Justice is 

not interfering with local control. 

1018 Steve Miletich, Jennifer Sullivan and Lynn Thompson, McGinn: DOJ Plan to Cost $41M; but Feds Say That’s 

‘Simply Wrong,’ Seattle Times (May 14, 2012), available at https://www.seattletimes.com/seattle-news/mcginn-dojplan-to-cost-41m-but-feds-say-thats-simply-wrong/. 

1019 Sadie Gurman, Federal Overhauls of Police Departments Bring Mixed Results, Chicago Tribune (April 5, 2017) 

available at http://www.chicagotribune.com/news/nationworld/ct-federal-police-departments-overhaul-20170405-

story.html. 

1020 Ray Sanchez & Brad Parks, Draft of Reforms for Chicago Police Unveiled by Mayor, State Attorney General, 

CNN (July 27, 2018). 
Commissioners’ Statements, Rebuttals, and Surrebuttals 195 

But that assumes a fact that has not been proven to us. We on the Commission cannot speak to the 

question of the performance of any of particular police department.1021 That is not an inquiry we 

undertook. As a result, we cannot we opine on whether adding layers of bureaucracy will be a 

good thing or a bad thing in a particular case. Mercifully, we have not yet reached the point where 

bureaucracy is considered a good unto itself. 

 

 

1021 In her statement, Chair Lhamon points out that she has experience with the Los Angeles police department back 

in 2002. However, I must point out that one of her statements seems to have inadvertently misstated something. 

She wrote, “As the U.S. Court of Appeals for the Ninth Circuit charitably phrased it, my clients had ‘suffered from, 

and [were] likely to continue to suffer from, the unconstitutional police misconduct that forms the basis of the 

United States’ suit against the City defendants.’” See United States v. City of Los Angeles, 288 F.3d 391, 397 (9th

Cir. 2002). The Court, however, was referring to Chair Lhamon’s clients’ allegations. It was not finding that those 

allegations were true. That opinion was simply about whether the District Court erred in failing to allow certain 

litigants (including Chair Lhamon’s clients) to intervene. The Court ultimately found that that the Los Angeles 

Police Protection League should have been granted leave to intervene as of right. It further found that the District 

Court erred in the standards for determining whether the group that it referred to as the “Community Interveners” 

(Chair Lhamon’s clients) should be permissively allowed to intervene. It therefore remanded for a re-determination 

of that issue. In the interim, however, the District Court had entered the consent decree without the participation of 

either the Los Angeles Police Protection League or the Community Interveners. On this matter, the Court held that 

“it was proper for the district court to continue to act in the case notwithstanding the intervention appeal because no 

stay was entered” and stated that its holding “does not require the district court to turn back the clock or rescind the 

consent decree.” Id. at 404-05. 

 
196 Police Use of Force 

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Commissioners’ Statements, Rebuttals, and Surrebuttals 197 

Dissenting Statement of Commissioner Peter Kirsanow 

The events that prompted this report were based on a lie. The Commission decided on this topic 

in the wake of protests in Ferguson, Missouri after the death of Michael Brown. “Hands up, don’t 

shoot,” became a mantra, the alleged last words of a supposed innocent black man callously 

murdered by a white police officer, an example of the disproportionate and unjustified targeting 

and use of force against blacks by cops. 

But it was a lie. 

Don’t take my word for it—take the Obama Justice Department’s word for it. The Criminal Section 

of the Department of Justice’s Civil Rights Division conducted an in-depth review of the shooting 

and concluded that Officer Darren Wilson’s actions were not objectively unreasonable and that he 

had not violated Brown’s constitutional right to be free of excessive force. 

Wilson encountered Brown as he was responding to a report that a man matching Brown’s 

description had stolen several packages of cigarillos from a convenience store by intimidating the 

clerk with his large size. The Criminal Section wrote in its report: 

As Wilson drove toward Brown and Witness 101, he told the two men to walk on 

the sidewalk. According to Wilson’s statement to prosecutors and investigators, he 

suspected that Brown and Witness 101 were involved in the incident at Ferguson 

Market based on the descriptions he heard on the radio and the cigarillos in Brown’s 

hands. Wilson then called for backup, stating, “Put me on Canfield with two and 

send me another car.” Wilson backed up his SUV and parked at an angle, blocking 

most of both lanes of traffic, and stopping Brown and Witness 101 from walking 

any further. Wilson attempted to open the driver’s door of the SUV to exit his 

vehicle, but as he swung it open, the door came into contact with Brown’s body and 

either rebounded closed or Brown pushed it closed. 

Wilson and other witnesses stated that Brown then reached into the SUV through 

the open driver’s window and punched and grabbed Wilson. This is corroborated 

by bruising on Wilson’s jaw and scratches on his neck, the presence of Brown’s 

DNA on Wilson’s collar, shirt, and pants, and Wilson’s DNA on Brown’s palm. 

While there are other individuals who stated that Wilson reached out of the SUV 

and grabbed Brown by the neck, prosecutors could not credit their accounts because 

they were inconsistent with physical and forensic evidence, as detailed throughout 

this report. 

Wilson told prosecutors and investigators that he responded to Brown reaching into 

the SUV and punching him by withdrawing his gun because he could not access 

less lethal weapons while seated inside the SUV. Brown then grabbed the weapon 

and struggled with Wilson to gain control of it. Wilson fired, striking Brown in the 

hand. Autopsy results and bullet trajectory, skin from Brown’s palm on the outside 

of the SUV door as well as Brown’s DNA on the inside of the driver’s door 
198 Police Use of Force 

corroborate Wilson’s account that during the struggle, Brown used his right hand 

to grab and attempt to control Wilson’s gun. According to three autopsies, Brown 

sustained a close range gunshot wound to the fleshy portion of his right hand at the 

base of his right thumb. Soot from the muzzle of the gun found embedded in the 

tissue of this wound coupled with indicia of thermal change from the heat of the 

muzzle indicate that Brown’s hand was within inches of the muzzle of Wilson’s 

gun when it was fired. The location of the recovered bullet in the side panel of the 

driver’s door, just above Wilson’s lap, also corroborates Wilson’s account of the 

struggle over the gun and when the gun was fired, as do witness accounts that 

Wilson fired at least one shot from inside the SUV. 

Although no eyewitnesses directly corroborate Wilson’s account of Brown’s 

attempt to gain control of the gun, there is no credible evidence to disprove 

Wilson’s account of what occurred inside the SUV. Some witnesses claim that 

Brown’s arms were never inside the SUV. However, as discussed later in this 

report, those witness accounts could not be relied upon in a prosecution because 

credible witness accounts and physical and forensic evidence, i.e. Brown’s DNA 

inside the SUV and on Wilson’s shirt collar and the bullet trajectory and closerange gunshot wound to Brown’s hand, establish that Brown’s arms and/or torso 

were inside the SUV. 

After the initial shooting inside the SUV, the evidence establishes that Brown ran 

eastbound on Canfield Drive and Wilson chased after him. The autopsy results 

confirm that Wilson did not shoot Brown in the back as he was running away 

because there were no entrance wounds to Brown’s back. The autopsy results alone 

do not indicate the direction Brown was facing when he received two wounds to 

his right arm, given the mobility of the arm. However, as detailed later in this report, 

there are no witness accounts that could be relied upon in a prosecution to prove 

that Wilson shot at Brown as he was running away. Witnesses who say so cannot 

be relied upon in a prosecution because they have given accounts that are 

inconsistent with the physical and forensic evidence or are significantly 

inconsistent with their own prior statements made throughout the investigation. 

Brown ran at least 180 feet away from the SUV, as verified by the location of 

bloodstains on the roadway, which DNA analysis confirms was Brown’s blood. 

Brown then turned around and came back toward Wilson, falling to his death 

approximately 21.6 feet west of the blood in the roadway. Those witness accounts 

stating that Brown never moved back toward Wilson could not be relied upon in a 

prosecution because their accounts cannot be reconciled with the DNA bloodstain 

evidence and other credible witness accounts. 

As detailed throughout this report, several witnesses stated that Brown appeared to 

pose a physical threat to Wilson as he moved toward Wilson. According to these 

witnesses, who are corroborated by blood evidence in the roadway, as Brown 

continued to move toward Wilson, Wilson fired at Brown in what appeared to be 

self-defense and stopped firing once Brown fell to the ground. Wilson stated that 
Commissioners’ Statements, Rebuttals, and Surrebuttals 199 

he feared Brown would again assault him because of Brown’s conduct at the SUV 

and because as Brown moved toward him, Wilson saw Brown reach his right hand 

under his t-shirt into what appeared to be his waistband. There is no evidence upon 

which prosecutors can rely to disprove Wilson’s stated subjective belief that he 

feared for his safety. 

Ballistics analysis indicates that Wilson fired a total of 12 shots, two from the SUV 

and ten from the roadway. Witness accounts and an audio recording indicate that 

when Wilson and Brown were on the roadway, Wilson fired three gunshot volleys, 

pausing in between each one. According to the autopsy results, Wilson shot and hit 

Brown as few as six or as many as eight times, including the gunshot to Brown’s 

hand. Brown fell to the ground dead as a result of a gunshot to the apex of his head. 

With the exception of the first shot to Brown’s hand, all of the shots that struck 

Brown were fired from a distance of more than two feet. As documented by crime 

scene photographs, Brown fell to the ground with his left, uninjured hand balled up 

by his waistband, and his right, injured hand palm up by his side. Witness accounts 

and cellular phone video prove that Wilson did not touch Brown’s body after he 

fired the final shot and Brown fell to the ground. 

Although there are several individuals who have stated that Brown held his hands 

up in an unambiguous sign of surrender prior to Wilson shooting him dead, their 

accounts do not support a prosecution of Wilson. As detailed throughout this report, 

some of those accounts are inaccurate because they are inconsistent with the 

physical and forensic evidence; some of those accounts are materially inconsistent 

with that witness’s own prior statements with no explanation, credible for[sic] 

otherwise, as to why those accounts changed over time. Certain other witnesses 

who originally stated Brown had his hands up in surrender recanted their original 

accounts, admitting that they did not witness the shooting or parts of it, despite what 

they initially reported either to federal or local law enforcement or to the media. 

Prosecutors did not rely on those accounts when making a prosecutorial decision. 

While credible witnesses gave varying accounts of exactly what Brown was doing 

with his hands as he moved toward Wilson—i.e., balling them, holding them out, 

or pulling up his pants up [sic]—and varying accounts of how he was moving—

i.e., “charging,” moving in “slow motion,” or “running”—they all establish that 

Brown was moving toward Wilson when Wilson shot him. Although some 

witnesses state that Brown held his hands up at shoulder level with his palms facing 

outward for a brief moment, these same witnesses describe Brown then dropping 

his hands and then “charging” at Wilson.1022

 

1022 U.S. Dep’t of Justice, Department of Justice Report Regarding the Criminal Investigation Into the Shooting 

Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson, 2015, 

https://www.justice.gov/sites/default/files/opa/pressreleases/attachments/2015/03/04/doj_report_on_shooting_of_michael_brown_1.pdf. 
200 Police Use of Force 

I include this part of the DOJ report in my statement for several reasons. The fact that the prevailing 

narrative surrounding the death of Michael Brown and that launched protests against the police 

was a lie undermines this Commission report’s narrative. DOJ issued its report exonerating Wilson 

a month and a half before the Commission held its hearing on police use of force.1023 One would 

think this would deflate the Commission a bit and prompt it to reassess whether it should approach 

the topic based on an assumption that the police regularly engage in excessive force against 

minorities.1024 One would be wrong. Instead, the report uncritically repeats the statement of 

Montague Simmons from the Organization for Black Struggle, who stated at the hearing: 

The U.S. Commission on Civil Rights has now cast its eyes upon our community 

because the execution of Mike Brown, the corrupt and inept ways of the 

investigation as follows: The investigation that ended in a fiasco of a grand jury 

that would have amounted to business as usual, except for the anger, tenacity and 

determination of the people who have been in the streets over 250 days.1025

The Commission includes Michael Brown’s death in a list of police shooting deaths where “deescalation” should have be employed. Yet according to the DOJ report, Brown attacked Wilson 

while Wilson was sitting in his vehicle.1026 It was Brown who escalated the situation from a stop 

to investigate a theft of cigarillos to a life-and-death struggle. Brown’s death is a tragedy for him 

and for his family, but this report should not contribute to the false narrative that his death was 

racially-motivated. Brown attacked a police officer who stopped him. There is no evidence he was 

killed because of his race. 

The Commission report offers Simmons’s statement as a legitimate criticism of grand jury 

proceedings, the implication being that the grand jury system is flawed because the grand jury 

declined to indict Wilson. But over a month before Simmons testified, DOJ had concluded that 

there was no basis on which to charge Wilson. Simply because someone asserts that grand jury 

proceedings feel unfair to them does not mean the proceedings are unfair. It is clear that nothing 

would have satisfied Simmons short of the prosecution and conviction of Wilson, but both the 

grand jury and DOJ concluded that Wilson had not broken the law. The legal system is supposed 

to avoid scapegoating innocent people in order to placate angry mobs. 

 

1023 DOJ issued its report on March 4, 2015, and the Commission held its hearing on April 20, 2015. 1024 Over the past several years, the Commission, alas, has shown a preference for holding hearings and conducting 

investigations of events in the headlines. Perhaps the fact that DOJ issued a report undercutting the premise of this 

hearing before the hearing was even held should lead the Commission to question whether it is wise to continue 

chasing headlines, rather than focusing on smaller discrete issues that we are better suited to address. 1025 U.S. Commission on Civil Rights, Police Use of Force: An Examination of Modern Policing Practices, 2018 

[hereinafter Commission Report] at notes 47. 

1026 Commission Report at notes 702. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 201 

The DOJ report illustrates that making sweeping generalizations about police brutality is useless. 

These incidents are fact-specific. The facts often do not support charges of police brutality, though, 

so the report falls back on “systemic” analysis and surveys.1027 

Flaws in Report 

The report states: 

In her testimony to the Commission, Delores Jones-Brown from the Department of 

Law, Police Science, and Criminal Justice at the John Jay College of Criminal 

Justice also challenged the notion that black neighborhoods are inherently more 

violent than other neighborhoods, and thus the driver for excessive force statistics. 

Jones-Brown states that in some years during the past decade, the number of 

firearm-related homicides was the same for both black and white civilians, thus 

challenging the argument that violence in black neighborhoods can account for the 

disparate rates of fatal police shootings.1028

Jones-Brown testified that “the number of firearm-related homicides was the same for both black 

and white civilians”. Because the white population and black population are not the same size, the 

number of homicides is of limited utility in analyzing the prevalence of violence in communities. 

What matters is the rate of violence. The Census Bureau estimates that in 2017, 76.6 percent of 

the U.S. population was “white alone,” which includes Hispanics. 13.4 percent of the U.S. 

population was “Black or African-American alone”.1029 (This FBI table does not disaggregate 

offenders by both race and ethnicity, so it is impossible to determine how many non-Hispanic 

whites were arrested for murder.). 

 

1027 When the Criminal Division of the Civil Rights Division issued its report exonerating Wilson of having 

committed a crime or a constitutional violation, the Civil Rights Division as a whole issued a report accusing the 

Ferguson Police Department for committing constitutional violations in its collection of municipal fines and fees. 

The Commission dutifully followed suit and held two hearings on municipal fines and fees, culminating in issuing a 

report. See U.S. Commission on Civil Rights, Targeted Fines and Fees Against Communities of Color, 2017, 

https://www.usccr.gov/pubs/2017/Statutory_Enforcement_Report2017.pdf. 1028 Commission Report at notes 163. 1029 U.S. Census Bureau, “QuickFacts, United States,” https://www.census.gov/quickfacts/fact/table/US/PST045217 

(last accessed Nov. 4, 2018). 
202 Police Use of Force 

In 2016, 4,192 white people (Hispanic and non-Hispanic) were arrested for murder and nonnegligent manslaughter.1030 But 4,935 black people were arrested for murder and non-negligent 

manslaughter. Even in absolute terms, the number of black Americans arrested for murder and 

nonnegligent manslaughter exceeds the number of white Americans arrested for murder and 

nonnegligent manslaughter, even though the white population is five-and-a-half times the size of 

the black population. The white alone (Hispanic and non-Hispanic) population of the United States 

was approximately 249,485,500 in 2017, and the black alone population was approximately 

43,646,369.1031 This means that approximately 1.7 whites are arrested for murder per 100,000 

whites, and approximately 11.3 blacks are arrested for murder per 100,000 blacks. Or to put it 

another way, blacks are six times more likely to be arrested for murder than are whites. And this 

is not because the criminal justice system is racist. Cases of murder are very straightforward. There 

is a dead body. No police officer wants a bunch of unsolved murders on his record. And often it is 

not too difficult to figure out who murdered someone, because the perpetrator frequently is a family 

member, friend, or known associate. 

 

1030 FBI: Uniform Crime Reporting, “2016 Arrests by Race and Ethnicity,” Table 21, https://ucr.fbi.gov/crime-inthe-u.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-21. 

1031 U.S. Census Bureau, “QuickFacts, United States,” supra note 1029. 

Population of the United States

White Black American Indian/Alaska Native Asian Native Hawaiian/Pacific Islander Two or More Races
Commissioners’ Statements, Rebuttals, and Surrebuttals 203 

The report states: 

[E]xperts also argue that bias may be increased by media outlets reinforcing the 

narrative of particular criminality by presenting African American and Latino 

people differently than white people—both quantitatively and qualitatively. News 

programs and newspapers over-represent people of color as crime suspects and 

white people as crime victims. Reporters may use language such as ‘black-on-black 

crime,” but rarely phrase violent crime as “white-on-white crime”; this gives the 

impression that violent crime is more prevalent and uniquely an issue with the black 

community.1032

Unfortunately, “people of color” are overrepresented as crime suspects, and violent crime is more 

prevalent within the black community than within white or (especially) Asian communities. It may 

be that “White Americans overestimate the proportion of crime committed by people of color ... 

white respondents in a 2010 survey overestimated the actual share of burglaries, illegal drug sales, 

and juvenile crime committed by African-Americans by 20-30%”1033, but that does not change the 

fact that African-Americans are overrepresented in criminal activity. The white respondents may 

have been wrong about the exact numbers, but they were correct in assuming that AfricanAmericans are disproportionately involved in crime. 

In 2016, there were 408,873 total arrests for violent crime. Since we do not have more granular 

data, let us be optimistic and assume that each of these arrests represents an individual who was 

only arrested once. 241,063 were white, 153,341 were black, 7,378 were Native American/Alaska 

Native, 5,755 were Asian, and 1,336 were Native Hawaiian/Pacific Islander. This means that 97 

 

1032 Commission Report at notes 154-56. 1033 Commission Report at notes 155. 

Arrests for Murder and Non‐negligent Manslaughter

White Black American Indian/Alaska Native Asian Native Hawaiian/Pacific Islander
204 Police Use of Force 

whites per 100,000 whites were arrested for violent crimes, and 351 blacks per 100,000 blacks 

were arrested for violent crimes. 

1,074,136 people were arrested for property crimes. 738,319 were white, 301,958 were black, 

17,782 were Native American/Alaska Native, 13,217 were Asian, and 2,860 were Native 

Hawaiian/Pacific Islander.1034

295 whites per 100,000 whites were arrested for property crimes, and 691 blacks per 100,000 

blacks were arrested for property crimes. So in fact, black neighborhoods generally are more 

violent and have more crime than white neighborhoods. 

 

1034 FBI: Uniform Crime Reporting, “2016 Arrests by Race and Ethnicity,” Table 21, supra note 1030. 

Arrests for Violent Crime

White Black Native American/Alaska Native Asian Native Hawaiian/Pacific Islander
Commissioners’ Statements, Rebuttals, and Surrebuttals 205 

The data make clear that whites are slightly underrepresented among criminals relative to their 

share of the population (there are, of course, specific crimes where whites are overrepresented), 

Asians are dramatically underrepresented relative to their share of the population, and blacks and 

Native Americans are dramatically overrepresented. In murder and non-negligent manslaughter, 

violent crimes, and property crimes, blacks range from 28 percent to 53 percent of those arrested, 

despite comprising only 13 percent of the population. Native Americans and Alaska Natives are 

only 1 percent of the population, but they account for 2 percent of those arrested for violent crimes 

and property crimes. 

In short, the data make clear that blacks are overrepresented among victims of police shootings, 

but they are underrepresented relative to their overrepresentation in crime, particularly violent 

crime. 22.5 percent of those killed by police in 2017 were black.1035 But 26.8 percent of all 

individuals arrested in 2017 were black.1036 

The report then shifts gears to acknowledge that yes, black neighborhoods have higher crime rates, 

but that fails to take into account “systemic issues” that are to blame.1037 “The “black-on-black” 

crime narrative as an explanation for police excessive use of force disregards the structural and 

historical issues that formed these neighborhoods, as well as the social and economic factors that 

currently sustain them.”1038 Even if you grant the “structural and historical issues,” the police can’t 

solve this problem—really no one can, because these issues are now baked in the cake—but the 

police in particular can’t because their job is to enforce the law, not to engage in housing policy. 

 

1035 Washington Post “2017 Police Shootings Database,” https://www.washingtonpost.com/graphics/national/policeshootings-2017/?noredirect=on (last accessed Nov. 4, 2018). 1036 FBI: Uniform Crime Reporting, “2016 Arrests by Race and Ethnicity,” Table 21, supra note 1030. 1037 Commission Report at notes 171. 1038 Commission Report at notes 170. 

Arrests for Property Crime

White Black Native American/Alaska Native Asian Native Hawaiian/Pacific Islander
206 Police Use of Force 

The report then claims that the assertion that African-Americans are disproportionately likely to 

be involved in crime “is also problematic because there is not an empirically sound way to ‘take a 

true measure of criminality within a population’” because the police are allegedly hopelessly 

biased. Then let’s take a look at the National Crime Victimization Survey, which asks individuals

to report when they have been victims of crimes and to identify the sex and race of the offender, 

if known. The NCVS captures crimes that victims did not report to the police. According to the 

most recent NCVS publication regarding offenders, which covers the period from 2012-2015, 

survey respondents reported an annual average of 5,883,800 nonfatal violent victimizations per 

year. The respondents reported that 43.8 percent of the offenders were non-Hispanic whites, 22.7 

percent were black, and 14.4 percent were Hispanic. So even according to victims—many of whom 

are black themselves—African-Americans are over-represented among criminal offenders.1039 The 

Commission report’s approach however is, “Who do you believe—me or your lying eyes?” 

I appreciate the report’s finding that the police have a difficult and admirable job.1040 The body of 

the report itself does not take law enforcement officers’ fear of being killed or injured seriously 

enough.1041 The report states that the number of police officers killed has declined over the past 30 

years—which is great! However, it is likely that a large part of that decline is due to the increased 

use of body armor by police. According to the International Association of Chiefs of Police in 

2014, since 1987 there were 3,108 confirmed cases of law enforcement officers whose lives had 

been saved due to body armor.1042 In 2017 alone, there were at least 22 officers whose lives were 

saved thanks to their body armor.1043 The report states that there were 42 firearms-related law 

enforcement fatalities in 2017. Had it not been for body armor, that number would likely be 65, 

which is comparable to the 63 average annual fatalities in the 1970s.1044

It is also worth noting that law enforcement officers are more likely to be killed by AfricanAmericans than they are to kill African-Americans. In 2017, 26 African-Americans and 34 nonHispanic and Hispanic whites (all male) were charged with killing law enforcement officers.1045 If 

we eliminate individuals who killed corrections officers while in prison, we are left with 14 

African-Americans and 26 whites (both non-Hispanic and Hispanic) who were charged with 

killing law enforcement officers, in addition to 3 Native Americans and 1 Asian. According to the 

 

1039 Rachel E. Morgan, Race and Hispanic Origin of Victims and Offenders, 2012-2015, Bureau of Justice Statistics, 

2017, Table 5, https://www.bjs.gov/content/pub/pdf/rhovo1215.pdf. 

1040 Commission Report: Finding 3. 1041 Commission Report at notes 188-204. 1042 The Bulletproof Vest Partnership Grant Program: Supporting Law Enforcement Officers When it Matters Most: 

Hearing Before the S. Comm. on the Judiciary, 113thCong. (2014), testimony of Chief Yousry A. Zakhary, 

President, International Association of Chiefs of Police, 

http://www.theiacp.org/Portals/0/documents/pdfs/051414ZakharyTestimony.pdf. 1043 International Association of Chiefs of Police, “The IACP/DuPont Kevlar Survivors Club 2017 Update,” Dec. 4, 

2017, https://theiacpblog.org/2017/12/04/the-iacp-dupont-kevlar-survivors-club-2017-update/; International 

Association of Chiefs of Police, “The IACP/DuPont Kevlar Survivors Club 2017 Update,” Dec. 5, 2017, 

https://theiacpblog.org/2017/12/05/the-iacp-dupont-kevlar-survivors-club-2017-update-2/. 1044 Commission Report at notes 193. 1045 Officer Down Memorial Page, “2017 Honor Roll of Heroes,” https://www.odmp.org/search/year/2017 (last 

accessed Nov. 4, 2018); see also Appendix A. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 207 

FBI, in 2016 there were 652,963 sworn officers.1046 This means that 2.1 per 100,000 sworn officers 

were killed by African-Americans in 2017.1047 3.9 per 100,000 sworn officers were killed by 

whites in 2016. Given the relative size of the populations, this means that 0.12 whites per million 

whites killed a police officer in 2016, but 0.37 blacks per million blacks killed a police officer in 

2016. Are these numbers tiny? Yes. Does it mean that blacks are three times as likely to kill police 

officers as are whites? Yes.1048

In 2017, 223 African-Americans were killed by police.1049 The African-American population was 

about 43,646,369. This means that 0.5 African-Americans per 100,000 were killed by police 

officers. Also in 2017, 636 whites (including both Hispanic and non-Hispanic whites) out of 

249,500,890 were killed by police officers. This means that 0.26 whites per 100,000 whites were 

killed by police in 2017. 

This is important because since African-Americans are disproportionately likely to be involved in 

crime, they are also disproportionately likely to encounter police officers. Even the most lawabiding black men are, through no fault of their own, likely to encounter the police more frequently 

than white men. As Heather Mac Donald stated in her written testimony to the Commission, “This 

incidence of crime means that innocent black men have a much higher chance of being stopped by 

 

1046 FBI: Uniform Crime Reporting, “2016 Full Time Law Enforcement Employees,” Table 25, 

https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/tables/table-25/. 1047 Officer Down Memorial Page, “2017 Honor Roll of Heroes,” supra note 1045; see also Appendix A. 1048 It is also worth noting that Native Americans are dramatically overrepresented among those who killed police 

officers in 2017, given that they are 1.3 percent of the total population. 

1049 Washington Post “2017 Police Shootings Database,” supra note 1035. 

Race of Suspects Who Killed Police Officers

White Black Native American Asian
208 Police Use of Force 

the police because they match the description of a suspect than white men. The police do not wish 

this; it is a reality forced on them by the facts of crime.”1050

The report cites a study in which: 

In a recent survey consisting of 802 African-American adults, researchers found 

that 50 percent of all black Americans (57 percent of black men and 44 percent of 

black women) said they have personally experienced racial discrimination when 

interacting with the police. Further, 61 percent responded that police officers are 

more likely to use unnecessary force against an African American person, 

compared to 26 percent who answered that police were just as likely to use 

unnecessary force against a white person. These perceptions of discrimination and 

unfair treatment by law enforcement have consequences for them personally and 

on society as whole, since the survey also showed that 31 percent of the respondents 

said that they avoided calling the police due to fear of discrimination.1051

There are several problems with uncritically reporting these survey results. First, just because 

someone thinks they experienced discrimination does not mean they actually experienced 

discrimination. Second, the police are more likely to use force (whether lawful or excessive) 

against individuals who are involved in crime, and since African-Americans are more likely to 

engage in crime than whites, the police are more likely to use force against them. People who live 

in majority-black neighborhoods see the police use force against other neighborhood residents 

because those residents are engaged in crime, but they may not realize that the police do not as 

often use force against individuals in majority-white neighborhoods because fewer people in those 

neighborhoods are involved in crime. Reports such as this one that obscure the black-white crime 

disparity only encourage confusion on this point. 

In its eagerness to air the grievances of every racial, ethnic, and sexual minority, the report also 

uncritically reports the complaints of Native American and transgender advocates. 

Simon Moya-Smith, an Oglala Lakota journalist and activist, states that the media 

rarely covers the number of police-involved killings that occur on tribal lands, and 

that these incidents are treated as isolated occurrences and largely ignored by the 

national media. Therefore, it is likely that there is less public awareness about police 

use of force in these communities, and in turn, considerably less public attention or 

outcry for reform. Moya-Smith states: “There are no white or black faces rallying 

around us, marching with us, protesting with us over this injustice. Why? Because 

we are a forgotten people.” Millet argues that of all police-involved killings of 

individuals from Native American and Alaskan Native communities over five 

 

1050 Heather Mac Donald, The Manhattan Institute, written statement for the “Police Use of Force: An Examination 

of Modern Policing Practices” Briefing before the U.S. Commission on Civil Rights, April 20, 2015, at 2 

[hereinafter Mac Donald Statement]. 

1051 Commission Report at notes 212-214. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 209 

years, only two have received significant media coverage outside of the local 

community.1052

It is a bit difficult to argue that police-involved killings on tribal lands are motivated by racism, 

because many police officers on reservations are tribal police who are themselves Native 

Americans.1053 Local law enforcement generally does not have authority on the reservation1054, 

 

1052 Commission Report at notes 48. 1053 It is possible local or federal authorities may be involved, but again, the tragic circumstances of these deaths do 

not support a “racist police slaughter minorities” narrative. There are two 2017 cases in the Washington Post

database in which a Native American was killed on tribal land by non-tribal police. The first involved federal law 

enforcement. BIA agents were responding to a report of shots fired at a gas station. When they encountered George 

“Ryan” Gipp, he 

[W]alked over to them with his hand in his pockets and didn’t follow police orders and was shot. 

“The two FBI agents did give us an overview and a video, dash cam of the incident that occurred that night,” said 

Mike Faith, Standing Rock Sioux Tribal Chairman. 

Faith says the case was reviewed by The U.S. Attorney’s Office in the District of Nebraska. 

“Determined that Officer Sandland and Officer Webb did not violate George Ryan Gipp Jr. civil rights. And that no 

charges are warranted and have closed their case,” said Faith. 

The FBI said Nebraska reviewed it because North Dakota and South Dakota felt a conflict of interest. 

FBI agents say the investigation was thorough in an effort to show transparency since the case involved two officers. 

“Like always, our condolences do go out to the family. It is a sad time, but the family wanted to know also, and the 

tribe. So the case has been closed,” said Faith. 

Daniela Hurtado, “No charges for officers in Fort Yates October shooting death,” KFYR, May 11, 2018, 

http://www.kfyrtv.com/content/news/No-charges-for-officers-in-Fort-Yates-October-shooting-death482432011.html; see also Jack Dura, “Feds reviewing fatal shooting near Fort Yates,” Bismarck Tribune, March 27, 

2018, https://bismarcktribune.com/news/local/crime-and-courts/feds-reviewing-fatal-shooting-near-fortyates/article_21918f2b-d4ad-5460-b7d9-37126a642aa3.html. 

In the second case, a police officer from Avenal, California was part of a county task force that “responded to 

reports of a violent man at the Santa Rosa Rancherita, an Indian reservation adjacent to the Tachi Palace Casino.... 

Putnam says on Friday night Phoenix threatened security officers on the reservation with a gun and then fled to a 

house. 

“At this house, he repeatedly threatened other people inside the residence while continuing to brandish the 

handgun,” he said. 

Putnam said deputies and other officers with the gang task force surrounded the house but Phoenix fled out of a 

window. He was then confronted by an officer of the Avenal Police Department. 

“Mr. Phoenix turned and pointed his handgun at a law enforcement officer,” he said. “(Officer) Rivera, fired at Mr. 

Phoenix, obviously fearing for his life after having a gun pointed at him. The result was Mr. Phoenix was hit by 

gunfire and immediately fell to the ground.” 

Four shots were fired Phoenix was pronounced dead at a local hospital. The fun Phoenix was holding was not real 

but looked like a semiautomatic handgun. 

Stivers said it appeared Phoenix was under the influence. 

Gene Haagenson, “Authorities release details of deadly officer-involved shooting near Tachi Palace,” ABC30, 

March 6, 2018, https://abc30.com/news/authorities-release-details-of-deadly-officer-involved-shooting-near-tachipalace/1787865/. 

1054 Ian MacDougall, “Should Indian Reservations Give Local Cops Authority on Their Land?,” The Atlantic, July 

19, 2017, https://www.theatlantic.com/politics/archive/2017/07/police-pine-ridge-indian-reservation/534072/. 
210 Police Use of Force 

and local law enforcement officers near reservations may be Native American themselves.1055

Furthermore, as with African-Americans, Moya-Smith’s complaint ignores the sad reality that 

violent crime is endemic on reservations. “Given that the violent crime rate on reservations is 

between double and triple the national average, comparable communities would be large urban 

areas with high violent crime rates.”1056

In fact, two Native American police officers, Colt Allery and Houston Largo, were killed in 2017. 

Largo, a tribal police officer, was killed by a fellow member of the Navajo Nation. Allery, a county 

deputy who had previously served as a tribal police officer, was killed by a fellow member of the 

Turtle Mountain Band of Chippewa.1057 Incredibly, the Washington Post database includes Deputy 

Allery’s killer, Melvin Delong, in its list of individuals killed by police in 2017—which is 

technically correct, but leads the casual reader to believe that Delong was a victim of police 

brutality. Rather, “The video depicts Deputy Allery being shot in the face [after approaching 

Delong’s truck] and Deputy Allery not firing any shots”, after which other deputies shot and killed 

Delong.1058 

The facts in cases where Native Americans are shot off tribal lands similarly do not support the 

Commission report’s allegations. Joshua Spottedhorse was shot in Spokane, Washington after 

robbing a grocery store cashier at gunpoint, being surrounded by police, fleeing on foot, and 

sticking his hand in his waistband after being repeatedly ordered to show his hands.1059 Thomas 

Littlecloud began shooting a rifle through a motel room door as police approached to investigate 

a vehicle death.1060 Littlecloud killed Sacramento Deputy Bob French and injured two California 

Highway Patrol officers. Littlecloud later died of a gunshot wound he sustained during the gun 

battle that he initiated. 

 

1055 See Stewart Wakeling, Miriam Jorgensen, Susan Michaelson, and Manley Begay, Policing on American Indian 

Reservations: A Report to the National Institute of Justice, U.S. Dep’t of Justice, 2001, 

https://www.ncjrs.gov/pdffiles1/nij/188095.pdf. 1056 Ibid. at vii (citations omitted); see also National Institute of Justice, “Tribal Crime and Justice,” April 24, 2018, 

https://www.nij.gov/topics/tribal-justice/Pages/welcome.aspx. 1057 Andrew Hazzard, “Community, colleagues say goodbye to slain Rolette County deputy,” West Fargo Pioneer, 

Jan. 24, 2017, http://www.westfargopioneer.com/news/4205089-community-colleagues-say-goodbye-slain-rolettecounty-deputy; U.S. Dep’t of Justice, U.S. Attorney’s Office, District of New Mexico, “Kirby Cleveland Charged 

with Murder of Navajo Nation Tribal Police Officer,” March 21, 2017, https://www.justice.gov/usao-nm/pr/kirbycleveland-charged-murder-navajo-nation-tribal-police-officer. 1058 April Baumgarten, “Suspect in Rolette County shooting fired first, killed Deputy Colt Allery, investigation 

reports say,” Grand Forks Herald, May 2, 2017, http://www.grandforksherald.com/news/4260251-suspect-rolettecounty-shooting-fired-first-killed-deputy-colt-allery-investigation. 1059 Jonathan Glover, “Training pays off for Safeway employee held at gunpoint Tuesday,” The Spokesman-Review, 

Dec. 28, 2017, http://www.spokesman.com/stories/2017/dec/28/training-pays-off-for-safeway-employee-held-atgun/; KREM Staff, “Officer who killed Safeway robbery suspect justified in use of force,” KREM, March 26, 2018, 

https://www.krem.com/article/news/local/spokane-county/officer-who-killed-safeway-robbery-suspect-justified-inuse-of-force/293-532295939. 

1060 Sarah Heise, “Deputy French fired at suspect even after he was shot, sheriff says,” KCRA, Sept. 6, 2017, 

https://www.kcra.com/article/deputy-french-fired-at-suspect-even-after-he-was-shot-sheriff-says/12175319; Kevin 

Oliver, “Federal judge was warned not to release man who killed Sacramento Co. deputy,” KCRA, Sept. 8, 2017, 

https://www.kcra.com/article/federal-judge-was-warned-not-to-release-man-who-killed-sacramento-codeputy/12206136. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 211 

The report found that 59 percent of transgender respondents reported being stopped by police and 

being “profiled as sex workers when they were conducting routine daily tasks in the 

neighborhood.”1061 It should be noted that one of the Commission’s recent reports stated that nearly 

20 percent of transgender respondents had engaged in prostitution or selling drugs.1062 The source 

the Commission relied on states that 11 percent of surveyed transgender individuals engaged in 

prostitution, in contrast to the perhaps 1 percent of U.S. women who have engaged in 

prostitution.1063 So if the police are indeed profiling transgender individuals as prostitutes, they are 

behaving rationally. 

It is worth noting here that “unarmed” is not a synonym for “harmless,” even though the report 

treats it as though it is. In 2016, 656 people were beaten to death by individuals who had no other 

weapon—more than the number killed by rifles and shotguns combined.1064 Even though they are 

armed with lethal and non-lethal weapons, it is not irrational for police officers to be afraid of 

“unarmed” individuals who are attacking them or are acting in a threatening manner.1065

For that matter, “mentally ill” is not a synonym for “harmless.” It may reduce the individual’s 

culpability for his behavior, but it does not mean that his behavior, even if beyond his control, is 

not objectively dangerous. Of the 236 people shot by police in 2017 whom the Washington Post

classified as “mentally ill,” only 12 were unarmed.1066 122 were armed with a gun, 65 with a knife, 

 

1061 Commission Report at notes 291. 1062 U.S. Commission on Civil Rights, LGBT Employment in America, 2017, at 19, 

https://www.usccr.gov/pubs/docs/LGBT_Employment_Discrimination2017.pdf. 1063 Jaime M. Grant, Lisa A. Mottet, and Justin Tanis, Injustice at Every Turn: A Report of the National Transgender 

Discrimination Survey, National Center for Transgender Equality and National Gay and Lesbian Task Force, 2011, 

at 21, http://www.thetaskforce.org/static_html/downloads/reports/reports/ntds_full.pdf. 1064 FBI, “Expanded Homicide Data Table 4,” 2016, https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-

2016/tables/expanded-homicide-data-table-4.xls. 

1065 In 2017, four corrections officers, one in Delaware and three in North Carolina, were beaten to death by inmates. 

See Brittany Horn, “Here are the 18 inmates charged in officer’s death,” Delaware Online, Oct. 17, 2017, 

https://www.delawareonline.com/story/news/crime/2017/10/17/delaware-inmates-charged-connection-death-ltsteven-floyd/772597001/; Kevin Green, “Autopsy: NC corrections officer hit with boiling water then beaten with 

fire extinguisher,” WNCN CBS North Carolina, Oct. 26, 2017, https://www.wavy.com/news/autopsy-nc-correctionsofficer-hit-with-boiling-water-before-being-beaten-with-fire-extinguisher/1078266151; “Durham man who shot 

trooper in 2013 among 4 charged in attempted prison break,” WRAL, Oct. 20, 2017, https://www.wral.com/durhamman-who-shot-trooper-in-2013-among-4-charged-in-attempted-prison-break/17031550/. 

1066 For example, Jean Pedro Pierre chased a deputy from his apartment and down the hallway, did not back down 

after the deputy deployed his Taser, knocked the deputy to the ground and dragged him by the leg, and began to 

charge another deputy, who shot him. Brian Hamacher, “Body Camera, Cellphone and Surveillance Videos Show 

Fatal BSO Deputy-Involved Shooting in Lauderdale Lakes,” NBC Miami, Dec. 8, 2017, 

https://www.nbcmiami.com/news/local/Cellphone-Video-Shows-Fatal-BSO-Deputy-Involved-Shooting-inLauderdale-Lakes-462793703.html. William Porubsky (who was white) attacked a deputy who had given him a ride 

to a homeless shelter after a woman reported Porubsky was pounding on her door and acting erratically. Porubsky 

tried to knock the deputy’s stun gun out of his hand, and when the deputy discharged the stun gun, it had no effect. 

Porubsky knocked the deputy to the ground and punched him in the face, at which point the deputy shot Porubsky. 

The Summit County Prosecutor determined that the shooting was justified. Evan MacDonald, “Stow police officer’s 

fatal shooting was justified, prosecutor says,” Cleveland.com, Feb. 15, 2018, 

https://www.cleveland.com/akron/index.ssf/2018/02/stow_police_officers_fatal_sho.html. On the other hand, an 

Oklahoma police officer was charged with murder for shooting Dustin Pigeon, who was suicidal and trying to set 
212 Police Use of Force 

12 with a toy weapon, and 20 with some other weapon (such as a pitchfork1067 or an ax1068). And 

as panelists Bob Metzger and Felix Vargas noted at our hearing, particularly when a person is both 

mentally ill and is on drugs, it may be very difficult to subdue him.1069 Unfortunately, it may be 

impossible to subdue an individual without using deadly force. 

Ferguson Effect 

Report finding Number Six states: 

Department of Justice engagement with police departments through policerequested assistance and at times enforcement and monitoring has proved beneficial 

to the police and their communities. Recommendations made by the Civil Rights 

Division, the Office of Community Oriented Policing Services (COPS) and the 

Community Relations Services office (CRS) have led to police departments 

implementing policies and practices that uphold constitutional standards. 

Departments that have undergone DOJ investigation and made agreements for 

reform, and those who have sought voluntary engagement, continue to see 

improved policies on use of force, better training of officers, and implementation 

of more advanced internal accountability and information systems.1070 

Contrary to the tone of this finding such investigation and reforms have not been an unqualified 

success. For example, Chicago and Baltimore are two cities that have been made prominent targets 

of DOJ investigations and consent decrees. Both witnessed dramatic spikes in crime, particularly 

murders.1071 Maybe the investigations and consent decrees made some members of the community 

feel better, but they seem to have mostly emboldened the criminal community—and it is doubtful 

that an increased number of listening sessions are of much comfort to the parents of a child hit by 

a stray bullet. 

 

himself on fire, after another officer shot Pigeon with beanbag rounds to no effect (Pigeon was of Asian descent). 

Crimesider Staff, “Oklahoma officer charged with murder in shooting of suicidal man,” CBS, Dec. 5, 2017, 

https://www.cbsnews.com/news/oklahoma-officer-charged-with-murder-in-shooting-of-suicidal-man/; Washington 

Post “2017 Police Shootings Database,” supra note 1035. 1067 Joseph Serna, “‘Despondent’ man with pitchfork fatally shot by Sacramento County sheriff’s deputy,” Los 

Angeles Times, Nov. 2, 2017, http://www.latimes.com/local/lanow/la-me-ln-sacramento-ois-pitchfork-20171102-

story.html; Nashelly Chavez, “Man shot by Sacramento County deputy posted a suicidal message the night before 

his death,” Sacramento Bee, Nov. 3, 2017, https://www.sacbee.com/news/local/crime/article182630416.html. 1068 “Reserve deputy cleared in fatal shooting of woman with ax,” Las Cruces Sun-Times, Jan. 24, 2018, 

https://www.lcsun-news.com/story/news/2018/01/24/reserve-deputy-sergio-gotbeter-cleared-fatal-shootingwoman/1063925001/. 

1069 Vargas, Briefing Transcript at 127, 91. Mr. Vargas argued that Mr. Zambrano, the individual who was shot by 

police in Pasco, Washington, could have been controlled through physical force because he was a small man, 

although a taser was ineffective. I offer no opinion as to the feasibility of Mr. Vargas’s suggestion. 1070 Commision Report, Findings: Finding 6. 1071 Kevin Rector, “In 2016, Baltimore’s second-deadliest year on record, bullets claimed targets and bystanders 

alike,” Baltimore Sun, Jan. 2, 2017, http://www.baltimoresun.com/news/maryland/crime/bs-md-ci-homicides-2016-

20170102-story.html. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 213 

The Chicago consent decree likely will hamstring police officers in their efforts to enforce order 

and will endanger them. For example, the proposed consent decree states: 

CPS officers will treat each application or standard cycle (five seconds) of a Taser 

as a separate use of force that officers must separately justify as objectively 

reasonable, necessary, and proportional. CPD will continue to require officers to, 

when possible, use only one five-second energy cycle and reassess the situation 

before any additional cycles are given or cartridges are discharged. In determining 

whether any additional application is necessary, CPD officers will consider whether 

the individual has the ability and has been given a reasonable opportunity to comply 

prior to applying another cycle.1072

The consent decree reads as if police officers are going to be making these decisions in a clinical 

environment where they can calmly observe whether the Taser is effective before activating it 

again. Watching dash cam and body cam footage of struggles with suspects quickly reveal that is 

rarely how these scenarios unfold. Tasers were a great innovation because they allow officers to 

use non-lethal force. Are they harmless? No. But an exhaustive investigation by Reuters found 

only 153 deaths attributed to Tasers over the entire country from 1983-July 31, 2017 (Reuters 

inflates the numbers by reporting 1,005 deaths that occurred after Taser use, but that were not 

attributed to Taser use—for example, 17 people who died after choking on bags of drugs, because 

the use of a Taser might have made choking more likely).1073 Although each death is a tragedy for 

the individual and his family, this simply is not very many people, and certainly not enough to 

place additional restrictions upon the use of Tasers—particularly because Tasers are not always 

effective, so police officers are already taking an increased risk to themselves by using a Taser 

rather than a firearm.1074

The consent decree also will drown police officers in paperwork, thus giving them less time to 

engage in patrol work and other non-paperwork duties. For example: 

CPD members must report and document any reportable use of force. Beginning 

January 1, 2019, a reportable use of force will be defined as any use of force by a 

CPS member included in any of the following three levels: 

a. A level 1 reportable use of force is the use of any force by a CPD member 

to overcome the active resistance of a subject that does not rise to a level 2 

 

1072 Consent Decree, Draft for Public Review, Illinois v. Chicago, Case No. 17-CV-6260, at 51 (N.D. Ill. July 28, 

2018), http://chicagopoliceconsentdecree.org/wp-content/uploads/2018/07/Illinois-v.-Chicago-Consent-DecreeDraft-for-Public-Review-2018-7-27.pdf. 

1073 Peter Eisler, Jason Szep, Tim Reid, and Grant Smith, “Shock Tactics,” Reuters, Aug. 22, 2017, 

https://www.reuters.com/investigates/special-report/usa-taser-911/. 1074 Joe Sutton and Joe Sterling, “Police officer in Oklahoma dies after shootout,” CNN, March 27, 2017, 

https://www.cnn.com/2017/03/27/us/oklahoma-officer-killed/index.html (“Terney chased and used a Taser on the 

person—but he was able to scramble through a wooded area into a pasture. The officer and suspect later “were 

involved in gunfire,” Kidney said.”). 
214 Police Use of Force 

or level 3 reportable use of force. This would include force that is reasonably 

expected to cause pain or an injury, but does not result in injury or complaint 

of injury. The following techniques are level 1 reportable uses of force when 

applied in response to active resistance: pressure point compliance 

techniques; joint manipulation techniques; wristlocks; armbars; and any leg 

sweep, weaponless defense techniques, or takedown that does not result in 

injury or complaint of injury. It is not a reportable use of force for a CPD 

member to escort, touch, or handcuff a person with minimal or no resistance. 

[emphasis added]1075

Whenever a CPD member engages in a reportable use of force, the member must 

complete a TRR, or any similar form of documentation CPD may implement, prior 

to the end of his or her tour of duty. In addition to completing the TRR, officers 

must also document the reason for the initial stop, arrest, or other enforcement 

action per CPD policy. . . . 

In completing the TRR, or whatever similar documentation CPD may implement, 

CPD members must include a narrative that describes with specificity the use of 

force incident, the subject’s actions, or other circumstances necessitating the level 

of force used; and the involved member’s response, including de-escalation efforts 

attempted and the specific types and amounts of force used. The narrative 

requirement does not apply to CPD members who discharged a firearm in the 

performance of duty or participated in an officer-involved death in the performance 

of duty. Any CPD member who observes or is present when another CPD member 

discharges a firearm or uses other deadly force must complete a written witness 

statement prior to the end of his or her tour of duty. CPD members will note in their 

TRRs the existence of any body-worn camera or in-car camera audio or video 

footage, and whether any such footage was viewed in advance of completing the 

TRR or any other incident reports. CPD members must complete TRRs, or 

whatever similar documentation CPD may implement, and other reports related to 

the incident, truthfully and thoroughly . . . . 

All reportable uses of force by CPD members must be reviewed by CPD 

supervisors.1076

The Baltimore consent decree is similar.1077

 

1075 Consent Decree, Draft for Public Review, Illinois v. Chicago, Case No. 17-CV-6260, at 55 (N.D. Ill. July 28, 

2018). 

1076 Id. at 56-57, 59. 1077 Consent Decree, United States v. Police Dep’t of Baltimore City, Case No. 1:17-CV-00099-JKB, at 46-47 (D. 

Md. Jan. 12, 2017), https://www.justice.gov/opa/file/925056/download. 

BPD will ensure that it continues to categorize Reportable Force into levels for the purposes of reporting and 

reviewing each use of force. These levels will be based on the following factors: potential of the technique or 

weapon to cause injury or disability; degree of actual injury or disability; duration of force; potential for abuse or 
Commissioners’ Statements, Rebuttals, and Surrebuttals 215 

It is ironic that the report cites Chicago as an example of a successful implementation of a consent 

decree.1078 Given the violence raging across Chicago (and yes, it is generally “black on black” 

violence)1079, it is peculiar to cite Chicago as a successful example of anything related to criminal 

justice. A police commander was shot seven times while attempting to apprehend a four-time felon 

who was wearing body armor and carrying a weapon, which suggetss Chicago needs a stricter 

approach to law enforcement, not consent decrees.1080 In an interview with the Chicago SunTimes, Chicago police superintendent Eddie Johnson stated that he believed public backlash 

against his department in the wake of the Laquan MacDonald shooting contributed to the horrific 

violence that swept Chicago in 2016. 

“You couple that with the national anti-police narrative, that set us up for a 

disastrous 2016, and we saw it,” Johnson said. “Don’t get me wrong, you have to 

look at those things to ensure it doesn’t happen again. But I think a lot of criminals 

felt emboldened because of the national narrative. They didn’t feel like we were 

holding them accountable.”1081

This phenomenon is popularly known as the “Ferguson Effect,” which was first identified by 

panelist Heather Mac Donald the year after the Commission’s hearing.1082 The “Ferguson Effect” 

 

misuse of weapon or force; and physical vulnerability of the subject. Each level of Reportable Force, as defined 

below, will require increasingly rigorous reporting, investigation, and review. 

a. Level 1: Level 1 Reportable Force includes: (1) force that causes only transient pain or disorientation 

during its application as a means of gaining compliance, including hand control or escort techniques (e.g. 

elbow grip, wrist grip, or shoulder grip) and pressure point compliance techniques, but that is not 

reasonably expected to cause injury; (2) pointing a firearm or Conducted Electrical Weapon (“CEW”) at an 

individual; (3) “cycling” a CEW as a form of warning (“Displaying the Arc”); and (4) forcible takedowns 

that do not result in actual injury or complaint of injury. It does not include escorting, touching, or 

handcuffing a person with minimal or no resistance. Pointing a firearm or CEW at a person is a Level 1 use 

of Reportable Force, subject to the following exceptions: 

i. SWAT Team Officers and officers assigned to work on a federal task force will not be required to 

report the pointing of a firearm at a subject as a use of force during the execution of SWAT Team 

or federal task force duties; and 

ii. Pointing of a firearm at a subject will not be a use of Reportable Force if done solely while 

entering and securing a building in connection with the execution of an arrest or search warrant 

and a supervisor prepares a report detailing the incident. 1078 Commission Report at notes 554-55. 1079 Chicago Tribune Crime Team, “In Chicago, 374 people have been killed this year. That is 118 fewer than 2017,” 

Chicago Tribune, Sept. 9, 2018, http://www.chicagotribune.com/news/local/breaking/ct-chicago-homicides-datatracker-htmlstory.html. 

1080 Gregory Pratt, “Shomari Leghette, charged with Chicago commander’s murder, compares himself to Trayvon 

Martin,” Chicago Tribune, April 9, 2018, http://www.chicagotribune.com/news/local/breaking/ct-met-shomarilegghette-paul-bauer-chicago-magazine-20180407-story.html; Jessica D’Onofrio, “Suspect in killing of Chicago 

Police Cmdr. Bauer appears in court Friday,” ABC 7, March 9, 2018, https://abc7chicago.com/suspect-in-killing-ofcpd-cmdr-bauer-appears-in-court-friday/3193483/. 

1081 Mitchell Armentrout, “Chicago homicides down sharply in 2017, still over 650 slain,” Chicago Sun-Times, Dec. 

31, 2017, https://chicago.suntimes.com/news/chicago-murders-homicides-2017-steep-decline/. 1082 Heather Mac Donald, “The Ferguson Effect,” Washington Post, July 20, 2016, 

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/07/20/the-fergusoneffect/?noredirect=on&utm_term=.88e954adb4d7. 
216 Police Use of Force 

refers to sudden spikes in violent crime, particularly homicides, that occurred across the country 

following unrest surrounding the death of Michael Brown. The spikes were particularly 

pronounced in large urban areas. Cleveland, for instance, had a 90.5 percent increase in homicides 

in 2015, Baltimore had a 58.5 percent increase, Milwaukee had a 72.6 percent increase, and 

Chicago had a 15.0 percent increase.1083

Mac Donald argues that the increase in unrest and belief that they lacked governmental support 

caused police officers to reduce “proactive policing,” which helps maintain order, and instead 

respond only to calls. As Rahm Emanuel said before capitulating to anti-police forces, “They 

[police officers] have pulled back from the ability to interdict . . . They don’t want to be a news 

story themselves, they don’t want their career ended early, and it’s having an impact.”1084 Richard 

Rosenfeld of the University of Missouri-St. Louis believes that some form of the Ferguson 

Effect—either that police have backed off from proactive policing or loss of confidence in the 

police leading to increased private violence—is likely responsible for the surge in homicides 

among African-Americans since 2014.1085

It doesn’t really matter if “the community” feels better about the police if consent decrees and 

protests hamstring the police in their efforts to maintain order. The unfortunate fact of the matter 

is that even if every single police officer were perfectly trained, had not a shred of explicit or 

implicit racial bias, and never made a mistake under pressure, many individuals would still be 

killed by police every year. A situation where a man refuses to follow an officer’s orders, punches 

her in the face after she pepper-sprays him, and grabs her Taser and attempts to shoot her with it 

is almost certainly going to end with either the man or the officer dead.1086 Likewise, a man may 

be unarmed and have a mental illness, but if he chases a deputy out of his apartment and down the 

hallway, is unaffected by the use of a Taser and baton, knocks the deputy to the ground and 

continues kicking and dragging him after being ordered to stop by another deputy, and then charges 

the second deputy, there is a reasonable likelihood that deadly force will be used.1087 There are 

certainly individuals like Walter Scott who are completely innocent of wrongdoing, but it is far 

more common that individuals are killed by police after they have escalated a situation to a point 

where it is a life-or-death struggle. 

In the end, perhaps Michael Brown’s untimely death is an accurate archetype of so many 

individuals who die at the hands of police. An individual is involved in a crime, and the police are 

called. That individual behaves aggressively and the situation escalates. In the end, either the police 

officer or the suspect or both are wounded or dead. 

 

1083 Richard Rosenfeld, Documenting and Explaining the 2015 Homicide Rise: Research Directions, National 

Institute of Justice, 2016, at 9, https://www.ncjrs.gov/pdffiles1/nij/249895.pdf. 1084 Ibid. 1085 Ibid.; Richard Rosenfeld, Shytierra Gaston, Howard Spivak, Seri Irazola, Assessing and Responding to the 

Recent Homicide Rise in the United States, National Institute of Justice, 2017, 

https://www.ncjrs.gov/pdffiles1/nij/251067.pdf. 1086 Jonathan Cooper, “Officer undergoes surgery after struggle leading up to fatal metro officer-involved shooting,” 

KOCO News, Dec. 11, 2017, https://www.koco.com/article/officer-undergoes-surgery-after-struggle-leading-up-tofatal-metro-officer-involved-shooting/14411231. 

1087 Carey Codd, “Body Cam Video Captures Tense Moments Leading Up to Deadly Deputy-Involved Shooting,” 

CBS Miami, Dec. 8, 2017, https://miami.cbslocal.com/2017/12/08/video-shows-moments-leading-up-to-deadlydeputy-involved-shooting/. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 217 

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218 Police Use of Force 

Rebuttal of Commissioner David Kladney 

Commissioner Peter Kirsanow now claims the Commission’s inquiry into police use of force is 

based on a lie. It is not. He says we started investigating because of the protests after the death of 

Michael Brown at the hands of police. This case was not the basis of the project proposal, which I 

put forward, the police use of force briefing, or this report. Commissioner Kirsanow knows better. 

He voted for the project when I proposed it.1088

It is true that protests in St. Louis, Missouri brought attention to police use of force not seen in 

decades, but the Michael Brown case is not what crystallized it into a briefing before the 

Commission. For my part, I became convinced the Commission should examine police use of force 

after the shocking and tragic shooting of 12-year-old Tamir Rice in Cleveland. As I said when I 

proposed the Commission undertake this project, this episode, in particular, demonstrated failures 

up and down the chain of police training, tactics, supervision, and accountability. It is an abject 

failure of the administration of justice for police to kill a person over a minor crime or no crime at 

all, much less a 12-year-old kid. 

But even this one egregious case of police use of force did not form the basis of the Commission’s 

examination either. The briefing and report are an extensive look at police use of force policies 

around the country. We looked at failures of departments to ensure their chiefs of police and 

supervisors they appoint are training and enforcing constitutional standards with their officers. It 

is undoubtedly in the Commission’s charge to determine whether such uses of force fall hardest 

on the populations in the Commission’s jurisdiction, as has been alleged, which this report does in 

detail. 

Commissioner Kirsanow knows this. He takes issue with the Commission’s investigation because 

we did not determine, as he does, that crime statistics are the beginning and the end of the story. 

Commissioner Gail Heriot tells a similar story in her statement, bizarrely claiming that people on 

the left are not concerned with the deep injustice that race is a predictor of someone’s personal 

safety and whether or not that person will become a victim of violent crime. 

I am certainly concerned about crime rates. I think we should do a better job solving murders in 

every neighborhood, not just in well-connected ones. I don’t think it’s right to write off entire 

 

1088 Both Commissioner Kirsanow and Commissioner Heriot, who also writes a dissenting statement, voted to 

pursue this project. Commissioner Kirsanow stated as follows: 

COMMISSIONER KIRSANOW: Yes. Thank you, Mr. Chair. I support this as an appropriate and 

important use of Commission resources. The Tamir Rice situation is something that transpired not too far 

from my home. And there had been reporting regarding the officer involved in the shooting and whether or 

not there had been an appropriate background check. And these are tragic circumstances that I'm hopeful it 

notes exploring whether changes in police procedures will reduce police shootings, ultimate shootings 

particularly those that resulted in between 95 to a hundred deaths of blacks each year. 

U.S. Commission on Civil Rights, Business Meeting, Dec. 7, 2014, transcript at 52, 

https://www.usccr.gov/calendar/trnscrpt/CommissionBusinessMeetingTranscript_Dec12-2014.pdf. He also 

requested the Commission hear from people representing his view that crime rates are the underlying cause of 

disparities in use of force, which we did. 
Commissioners’ Statements, Rebuttals, and Surrebuttals 219 

blocks as places where shootings are inevitable, police use of force is inevitable, and people should 

be resigned to their fate. The statistics Commissioners Kirsanow and Heriot cite don’t tell the 

whole story. Looking deeper into the crime statistics shows, for example, murders with white 

victims are much more likely to be solved than murders with black victims. Yet, only 62% of 

murders of white victims get solved and only 47% of murders of black victims are solved.1089

Because so many more whites are numerically killed each year, the overall closure rate of murder 

in our country is 60%.1090 More surprising is that only 53% of aggravated assault cases, 34% of 

rape cases, 30% robbery and 20% of larceny cases are solved and closed every year.1091 Oh, and 

my fellow Commissioners should take note that less than half of all crime is reported in the first 

place.1092 I am not the only person to have noticed these rates seem low. Plenty of people who 

denounce police excessive use of force also call for police to do a better job solving crimes in their 

communities. 

The proposals made in this report will increase the crime case clearance rate. 

Commissioner Heriot sets up a false choice when she claims we cannot insist police protect the 

public and refrain from using excessive force. Our choice is not a binary “more” or “less” policing. 

The experts who testified at our briefing stated over and over that policing practices can be 

improved, and that doing so would increase community trust, solve more crimes, and thereby drive 

down crime rates. It is also required by our laws that police refrain from using excessive force. It 

is not some luxury people are requesting. 

Police departments’ own research and self-reflection has led to improvements, both in use of force 

practices and in crime clearance rates. The two are not mutually exclusive. As the Las Vegas 

Metropolitan Police Department experienced, “An analysis conducted during collaborative reform 

concluded that 90 percent of unarmed subjects in officer-involved shootings were black or 

Hispanic, and all subjects shot as a result of an officer-initiated stop were black or Hispanic.”1093

This led the Department to initiate a series of reforms that resulted in fewer police uses of force 

and better community engagement across the board, but with special focus on the communities it 

 

1089 FBI: Uniform Crime Reporting, “2017 Crime in the United States,” https://ucr.fbi.gov/crime-in-theu.s/2017/crime-in-the-u.s.-2017. See also German Lopez, “There’s a nearly 40 percent chance you’ll get away with 

murder in America,” Vox, Sept. 24, 2018, https://www.vox.com/2018/9/24/17896034/murder-crime-clearance-fbireport (citing FBI statistics). 

1090 Ibid. 1091 Ibid. 1092 See John Gramlich, “Most violent and property crimes in the U.S. go unsolved,” Pew Research Center, March 1, 

2017, http://www.pewresearch.org/fact-tank/2017/03/01/most-violent-and-property-crimes-in-the-u-s-go-unsolved/. 1093 Michelle Rindels and Luz Gray, “Vegas police led the way in overhauling force policies, but it hasn’t been a 

panacea,” Nevada Independent, Aug. 19, 2018, https://thenevadaindependent.com/article/vegas-police-led-the-wayin-overhauling-force-policies-but-it-hasnt-been-a-panacea. 
220 Police Use of Force 

noticed were affected the most.1094 The Boston Police Department has implemented new strategies 

and tactics for investigating crime, drastically improving their rates of solving homicides.1095 

We need to give officers better tools, better training, better supervision and better support services 

so they have all the tools they need to do their job safely and efficiently. They need better pay for 

the knowledge and skills we are asking them to possess, and we need to provide them more 

personnel for their safety, for example in providing for two-person patrol cars in high crime 

neighborhoods. That’s how to address excessive uses of force and increase community trust—by 

listening to people’s concerns and changing policies where appropriate. Not by quoting crime 

statistics and implying it’s all their own fault and there’s nothing more to do. 

Commissioner Kirsanow acknowledges that some innocent people—like Walter Scott—are killed 

by police, but then he says most have escalated the encounter so that it becomes a life or death 

struggle. He stops there. I do not. Police have a dangerous and difficult job, yes, but we have not 

reached the pinnacle of police strategic and tactical approach to citizens. A quarter of people the 

police killed were experiencing a mental health challenge at the time of their death by police. We 

can do better for them. Some, as Commissioner Kirsanow says, were not attacking police at all. 

We can do better for them. Some are attempting violence, but with the right approaches police can, 

at times, even approach those situations so they are safer and the suspect is safer too. There is 

ample evidence for this which Commissioners Kirsanow and Heriot conveniently ignore. 

Crime statistics are not destiny. Fatalism is not the answer. Better policing is possible. 

Commissioners Kirsanow and Heriot’s approach, surprisingly, is to throw in the towel. 

 

1094 Rachel Crosby, “Police rebuild trust in Las Vegas’ Westside, one event at a time,” Las Vegas Review-Journal, 

April 30, 2017, https://www.reviewjournal.com/crime/police-rebuild-trust-in-las-vegas-westside-one-event-at-atime/. 

1095 Anthony A. Braga and Desiree Dusseault, Can Police Improve Homicide Clearance Rates?, Harvard Kennedy 

School Rappaport Institute for Greater Boston, 2017, 

https://www.hks.harvard.edu/sites/default/files/centers/rappaport/files/braga_homicideclearance%20v7.pdf; Lopez, 

“There’s a nearly 40 percent chance you’ll get away with murder in America,” supra note 1089.