Police brutality

By: Ochs, Holona L.; Gonzalzles, Kuroki M. Salem Press Encyclopedia. 6p.

Police brutality
Definition: Abuses of authority that amount to serious and divisive human rights violations involving
the excessive use of force that may occur in the apprehension or retention of civilians

Significance: Persistent and pervasive patterns of abuse and the enduring obstacles to justice in
American policing have contributed to increasing international scrutiny since 1999, when the United
States was placed on the Human Rights Watch list of major human rights abusers, along with such
countries as Rwanda, Cambodia, and Zimbabwe. Although the impact of cases of police brutality and the
disparities in criminal justice in the United States represent substantial threats to institutional
legitimacy, it is important to note that the incidence of police use of force has historically been more
rare overall given the large numbers of contacts between police and members of the large and diverse
American public. By the first decades of the twenty-first century, however, public concern about the
issue of police brutality had grown amid high-profile cases and calls for systemic police reform.
Article 3 of the United Nations (UN) Code of Conduct for Law-Enforcement Officials states that the
legitimate use of force is only that which is “strictly necessary” to subdue persons under the
circumstances confronting officers. The UN Basic Principles on the Use of Force and Firearms by Law
Enforcement Officials restricts the use of force and firearms to situations in which the “use of force and
firearms is unavoidable.” Meanwhile, law-enforcement officials are expected to “exercise restraint in
such use and act in proportion to the seriousness of the offense and the legitimate objective to be
achieved.” Definitions and justifications for “reasonable” and “necessary” force provided by US law have
varied throughout history. The proper use of force by the police maintains the substance of the US
Constitution and is fundamental to legitimacy because the police hold a virtual monopoly over the
power to exercise lethal force against citizens.

Protests over cuts in 2012. This heavy man was on the ground,
police picked him up by the head. By Jack London (Own work) [CC-BY-SA-3.0
(http://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

Stop Police Brutality Sign By Fibonacci Blue (Flickr: Protest against

police brutality) [CC-BY-2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia Commons
Background
 Excessive and lethal force have always been major sources of conflict between members of minority
groups and the police in the United States. Despite substantial improvements in race relations, race
remains central to police brutality in the United States. A vast body of multidisciplinary literature on the
use of force by the police has revealed that members of minority groups face a significantly higher risk
than other citizens of becoming victims of police violence, and that members of racial and ethnic
minority groups are more likely to be incorrectly fired at by police, regardless of the race or ethnicity of
the officer.
Incidents of police violence against members of ethnic and religious minority groups and immigrants
have reinforced the public perception that some citizens are subjected to harsher treatment and greater
bias than others. Incidents in which real or perceived abuses are made public often spark civil unrest
that results in costly and violent uprisings and reinforces public distrust. In 1968, the National Advisory
Commission on Civil Disorders, also known as the Kerner Commission, concluded that abusive policing
tactics had contributed significantly to the widespread civil disorder of the 1960s.
Later investigatory commissions came to the same conclusions. These include the Christopher
Commission, which was appointed to investigate the Los Angeles riots that had followed the acquittal of
police officers who had beaten Rodney King; the 1992 St. Clair Commission on excessive force in Boston;
and the Mollen Commission on police misconduct in New York. The reports of all these commissions
revealed the same patterns that were evident in the Kerner Commission report and reached essentially
the same conclusions. Nevertheless, the recommendations made by these commissions remain
unrealized.
In August 2014, violent protests erupted and continued for days and then months after a white police
officer, Darren Wilson, shot and killed an unarmed black man, Michael Brown, in Ferguson, Missouri,
during an altercation related to a recent theft. After more than three months and amid continued verbal
and physical protests and unrest in Ferguson, the St. Louis County grand jury decided not to indict
Wilson on any charges. The entire country became involved in the emotions and issues raised by the
incident, and Wilson ultimately resigned from his position without severance in late November.
Additionally, President Barack Obama proposed a new plan to fund a program to institute the use of
body cameras for police forces. The subsequent deaths over the next year of a number of young black
men, including Akai Gurley, Tamir Rice, Freddie Gray, and Samuel DuBose, at the hands of police officers
generated a continued public outcry. The police shot and killed over 680 people in 2015; 6 percent of
white suspects who were shot were unarmed, while 14 percent of black victims were. According to data
collected by the Washington Post, by 2017, more than 980 people had been fatally shot by police that
year.
Frustrations regarding perceived incidents of police brutality peaked once more in the first months of
2020. After nationwide coverage of incidents including the death of Breonna Taylor, an unarmed black
woman who was shot several times and killed by police allegedly using a "no-knock" search warrant
inside her home in Louisville, Kentucky, in March, and the death of George Floyd, an unarmed black man
who died in police custody in Minneapolis, Minnesota, in May, large-scale protests broke out in cities
throughout the country. According to reports, a white officer restraining Floyd had knelt on his neck for
several minutes, even after Floyd had gone unconscious and claimed he could not breathe. Even as the
officers at the scene of Floyd's death were subsequently brought up on charges, protests continued in
the weeks after his death as activists demanded systemic police reform and some, including
representatives of Black Lives Matter, called for the defunding of police. Activists arguing for such
changes also pointed to many reports of police using force against peaceful protesters. While President
Donald Trump signed an executive order in June that was meant to address an extent of police reform,
some commentators and activists argued that the order did not go far enough to effect change.
Law-enforcement institutions implement their charges through the complex signaling relationships
among the various branches of government. Police must try to balance responsiveness to the law,
responsiveness to electoral institutions, and responsiveness to the public with the demands of keeping
the peace. The impact of “law and order” candidates on both the law and the executive direction of
bureaucratic agencies, such as police departments, has been tremendously influential on the history of
police brutality. For example, President Richard M. Nixon’s White House chief of staff H. R.
Haldeman once noted that “President Nixon emphasized that you have to face the fact that the whole
problem is really the blacks. The key is to devise a system that recognizes this without appearing to.”
Given the rampant criminality of the Nixon administration itself, political leadership lacking credible
commitments to the public perpetuate institutional legacies that define classes of people who are
deemed unworthy of protection by the police.
In addition, the “tough on crime” attitude that pervades public opinion is another element that
makes it such that those deemed unworthy of constitutional protections are further disadvantaged, as
they are perceived to fail to contribute in valuable ways to society. Citizens who are targets of policy are
more likely to be victims of police brutality because they are likely to have more interactions with the
police. Moreover, they are less likely to have access to avenues of recourse when they are victimized,
and they are not likely to be supported by institutions of justice or the public. Consequently, whether
the police respond to the law, politics, or the public, police brutality can be understood at least in part as
a reflection of the intolerance of American society.
Prevalence
Although incidents of improper use of force by officers are actually statistically rare overall, individual
cases have tremendous implications for social cohesion. A nationwide study conducted by the National
Institute of Justice (NIJ) in 1999 found that officers used force in slightly less than 1 percent of their
encounters with the adult public. There are obviously a number of methodological issues related to this
study. First, there is no universal definition of what constitutes “reasonable” and “necessary” force in a
given situation. Second, the NIJ study did not address police interactions with juveniles, and there is no
indication as to what amounts to excessive force against a child. Third, compliance and discretion in
reporting vary considerably. In a 2015 survey, the Bureau of Justice Statistics reported that among those
who had come into contact with the police that year, around 2 percent had force used or threatened
against them.
Rates of the use of force by the police vary widely and are significantly impacted by both
departmental policies and state laws as well as the compliance of statutes and policies with US Supreme
Court guidelines. As of 2020, while the National Conference of State Legislatures reported that
approximately sixteen states had enacted laws between 2014 and 2017 designed to regulate the use of
force, many laws remained relatively broad and typically enabled officers judging a safety risk for
themselves or others to use lethal force. The Supreme Court’s 1985 ruling in Tennessee v.
Garner outlined the boundaries of the police use of force such that permissive statutes, such as the
fleeing felon rule, are considered unconstitutional. Garner had been shown to have reduced fatal
shootings by the police. However, between that 1985 ruling and 1990, only four states had changed
their laws to bring them into compliance with the constitutional rule.
Ultimately, the elemental task of law enforcement, the application of lawful force to protect society,
creates a dilemma in which social cohesion is both preserved through and threatened by force. The
prevalence of police brutality is profoundly affected by expectations in ways that are self-reinforcing.
Given the history of police brutality in the United States and the self-perpetuating nature of reputations,
distrust between members of minority communities and the police are not likely to change without
changing expectations.
The dilemma of forced peace makes it such that society cannot expect to eliminate all cases of
brutality against the public. Therefore, implementing effective analysis of what is reasonable and
necessary force and what are credible commitments by the police to all members of society is essential
to affecting the prevailing patterns of police brutality. In addition, credibility must be earned and
commitments are likely to be tested.
Responsible leadership committed to reducing the prevalence of police brutality requires at least the
following conditions:
•establishing and using a reputation that reinforces the notion that police protect all members of
society
•making it costly to the careers of individual officers to violate their commitments to the public
•investing in incremental changes
•employing mandatory negotiating agents such as external complaint collection and automatic
civilian review
The principal of “rule of law” should protect citizens from arbitrary power, and the legitimacy of
democratic policing is integrally linked to police compliance with legal standards. The exercise of
discretion by the police is fundamental to the duty of police to protect and facilitates their ability to
serve the public. Excessive use of force is a federal crime that makes it criminal for an individual acting
under the color of the law, including private and contracted security personnel, to deprive any citizens
of their civil rights. Concerns about arbitrary police power and racial bias represent a significant threat
to the principles of the US Constitution. Therefore, transparency and accountability are essential to the
fair and effective pursuit of justice.
Investigation
Addressing brutality is a matter of political will. In many cases, organizations are in place to counter
such behavior effectively, but the parties responsible for oversight operate in hostile environments or
are themselves unwilling to engage in preventive or retributive actions. Limits on effective oversight and
organizational leadership that is designed to protect officers, rather than the public, magnify
shortcomings and contribute to a climate wherein officers are aware that punitive actions are unlikely.
There are three primary obstacles to effective oversight: lack of public accountability and
transparency, failure to investigate and prosecute incidences of brutality, and obstructionism. The first
of the three, lack of accountability and transparency, enables the others. One approach to monitoring
police accountability is through internal review, which is a formal bureaucratic process that is often
referred to as internal affairs (IA).
Most internal mechanisms designed to investigate incidences of abuse operate with secrecy and
often allow officials to refuse to furnish the public with relevant information regarding investigation. This
institutional secrecy manifests itself even in cases in which such information is supposed to be publicly
available. The provision and availability of data and systematic analysis of the use of force by the police
at the local, state, and federal levels rely on voluntary compliance and are inconsistent at best.
Furthermore, the data collected by the Federal Bureau of Investigation (FBI) and held by the Department
of Justice do not include injuries that fall short of death and also are known to be inaccurate. Therefore,
in an effort to rectify the situation, the FBI, along with a group of law-enforcement officials, instituted a
pilot study in 2017 designed to evaluate the methodology behind a proposed nationwide database of
police use-of-force incidents that result in death or serious bodily injury, which would make the
information available for more appropriate and consistent analysis. After approval was given, the FBI
officially launched its National Use-of-Force Data Collection and began accepting information in January
2019; however, the FBI did not have authority to require law-enforcement agencies to participate and
contribute data.
One of the inherent difficulties in internal monitoring is that the police do not always recognize their
own violations. Although departments are required to train their officers to deal with citizen claims
regarding brutal treatment, myriad problems pervade the process of compiling information from the
public regarding interactions with the police. The vast majority of citizens who feel they have been
mistreated by the police do not attempt to address the issue formally, primarily out of fear of
retribution. Police efforts to dissuade members of the public from making complaints are widespread
and persistent.
Citizens who express interest in filing complaints against police may be threatened with the
notorious “trilogy” of disorderly conduct, resisting arrest, and assaulting an officer. Scholar James J. Fyfe
has dubbed this phenomenon “contempt of cop,” citing a small percentage of officers who repeatedly
file such charges because they are offended by citizens’ demeanor without a legitimate law-
enforcement purpose. Complainants may face civil countercharges as well. Since the 1990s, there has
been a trend in which police officers have filed suits against plaintiffs and attorneys after unsuccessful
litigation, alleging defamation, malicious prosecution, or abuse of process. It should also be kept in mind
that police deal regularly with people motivated to make claims against police that might diminish their
own culpability.
Civilian review is another approach to oversight that constitutes independent, external review of
police activities. Citizen oversight bodies are often created in response to demands for external
accountability and take a number of different forms. Because demands for citizen oversight tend to
occur in communities in which police use of excessive force is consistently a divisive issue between the
police and public, and because of the political bargaining that takes place in the formation of civilian
review boards, evidence on the effectiveness of citizen participation in this form is limited. Public
participation in this form does, however, afford the police some relief from the occupational demands
that characterize police work, in that civilian review can inform police departments and share the
responsibility that comes with broadly defined objectives and authority.
The increased relative risk to members of minority groups and the relative inability of personnel
diversity to affect police killings make external institutional checks on authority an investment rather
than a cost. A considerable amount of scandal that can undermine legitimacy arises from incidents in
which police officers kill suspects. Departments spend a substantial amount of time and resources
dealing with situations in which lethal force is used. Additionally, officers involved in killings often
experience trauma that necessitates counseling services to deal with situations in which they have used
lethal force, they may have their careers interrupted, and their reputations can be damaged by such
incidents. Instituting structural mechanisms that influence the likelihood of excessive or deadly force
also means that officers will not have to experience this form of violence either.
Prosecution
There are essentially two paths to exacting justice for unlawful use of force by the police: criminal
and civil prosecution. Criminal prosecution may occur at the local, state, and federal levels. At the local
level, prosecutors can bring criminal charges against officers under state laws regarding such violent
offenses as assault, battery, murder, and rape. Some states have laws that specifically address excessive
police force. Federal prosecutors also have the authority to bring charges against officers under relevant
federal laws, and federal and state grand juries also have the power to investigate and indict officers for
the alleged criminal use of force.
Criminal prosecution is an extremely limited mechanism of accountability. Judges and juries tend to
afford considerable deference to police testimony, making conviction incredibly difficult and ultimately
making successful prosecution less likely. In addition, criminal prosecution does not address the
systematic organizational, leadership, political, and policy problems that contribute to the abuse of
power by officers.
Most states do not compile data on rates of prosecution, conviction, and sentencing, but there is
substantial evidence for concluding that criminal prosecution for police use of excessive force is
extremely rare. The lack of support by public officials, the need for good working relationships between
police and prosecutors, and the low probability of conviction contribute to a reluctance to bring charges
against officers. There are also few referrals from internal affairs. Moreover, the standard of proof that
requires prosecutors to demonstrate that officers had “specific intent” to deprive citizens of their civil
rights represents a significant obstacle to convictions.
Civil liability is another potential vehicle for achieving justice in cases of police brutality. The
necessary elements of proof and legal standards vary widely from state to state. Although the law
permits plaintiffs to recover both monetary damages and equitable relief, civil suits alleging excessive
force are exceedingly difficult to win. On the other hand, the amounts awarded in civil cases of excessive
force have risen steadily since the 1970s, and large settlements for police brutality have strained the
resources of some city governments. Nevertheless, potential financial burdens have not served as
effective deterrents to excessive force, primarily because civil suits provide little incentive for individual
officers to cease using excessive force. Civil suits also fail to influence systemic change in organizational
culture, departmental policies, unfair institutional structures, and patterns of political bias.
Punishment
The avenues for addressing police brutality include, but are not necessarily limited to, criminal
conviction, civil litigation leading to job loss, early warning systems that expect supervisors to impose
penalties for misuse of power, exacting additional education and training requirements for officers
exhibiting contempt, and victim-offender mediation. The reality, however, is that none of these avenues
is regularly or consistently utilized.
Institutional bias within police departments often favors officers and can include such protections as
police officer bills of rights. Although most bureaucrats are required to give up some of their individual
civil liberties for the privilege of government work, strong police unions and professional associations
afford exceptions for the police. Exceptions for officers allow for the purging of instances of abuse from
officers’ personnel files and negotiated contracts that can prevent the disciplining and dismissal of
officers when appropriate. Moreover, because police officers rely on one another for their own personal
physical safety, the use of lethal force to protect fellow officers is central to cohesion among officers.
Finally, the high degree of isolation inherent in police work contributes further to the organizational
culture known as the “blue wall of silence.” All these factors insulate the police from both necessary and
unnecessary punitive measures.
Addressing police brutality requires an understanding of the character of the law, the history of
disparities in criminal justice in the United States, and the fundamentally paradoxical nature of police
work. Justice is an abstract idea that is never perfectly actualized from all possible perspectives. Punitive
measures are not only extremely unlikely, but also are often unsatisfactory and insufficient means
for restorative justice. Punitive measures do not prevent police brutality in the future, nor do they
provide any means for re-establishing the trust that underlies the authority of the state, the legitimacy
of police power, and mutually beneficial community relations.
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