We Actually Know Exactly How to Stop Police From Using Excessive Force. Why Don’t We Do It?

The law, lawyers, and the court.
Aug. 15 2014 4:56 PM

Policing the Police

Training, retraining, and yet more training are not the way to stop police brutality.

Excessive Force.
No amount of officer retraining will stop police brutality as long as officers view average citizens as subhuman.

Photo illustration by James Emmerman. Photo by AFP/Getty Images

In just the last two months, Michael Brown, 18, was killed by a police officer in Ferguson, Missouri; Ezell Ford, 25, was killed by a police officer in Los Angeles; Frank Alvarado, 39, was killed by a Salinas police officer; Eric Garner, 43, was killed by a New York police officer; and Marlene Pinnock, 51, was brutally beaten by a California Highway Patrol officer. All of these victims were of color, and all were unarmed.

Since these latest incidents, there has been much talk about the need for retraining officers; and there have been repeated calls from an outraged public for investigations by the U.S. Department of Justice and the FBI. But training and federal investigations are ineffective responses to allegations of police misconduct. We know how to solve this epidemic; we just need to find the political will to do it.

Before they even don their uniforms, police officers receive hours and hours of training about the appropriate use of force. At the nation’s police academies, they learn how to evaluate situations where force could be an option and when it’s illegal. By the time officers are patrol-ready, they know how to use their firearms, batons, and stun guns. Yet, in response to the chokehold killing of Erin Garner, New York Police Commissioner William Bratton has called for the “retraining” of his officers. Training is, of course, essential to law enforcement. But it would be a serious and dangerous error to shrug off these deaths and beatings by cops and simply attribute them to inadequate training.

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Retraining is useless when officers view people of color as “f--king animals”—the words shouted by a police officer at a crowd in Ferguson protesting the killing of Michael Brown. All of the training and retraining in the world are of no moment if officers see the people they are charged to protect and serve as subhuman and dangerous.

And while some investigations by the FBI and the Justice Department have resulted in major and positive changes to police departments, these kinds of costly inquiries frequently take years to complete. Case in point: the fatal shooting of Brown in Ferguson. The FBI has opened a civil rights inquiry in response to the public outcry, but a week after the shooting, critical information such as the name of the officer, and the number of times and where on his body Brown was shot, has not been released. This is not a training problem. It’s a transparency problem.

So, if more training and federal investigations are not the answer, what is? First, police departments must broaden the definition of reasonable use of force. In 1989 the U.S. Supreme Court in Graham v. Connor defined the reasonable use of force as force “judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation.” That definition has been interpreted narrowly by law enforcement agencies across the country to mean that the reasonableness of the force is limited to an examination of only the amount of force used in the moment. The conduct of officers right before the use of force is never examined. Under this definition, officers who provoke individuals and officers who escalate situations get a pass. 

The definition of what constitutes the reasonable use of force must be expanded to include the circumstances leading up to the use of force, so that the inquiry into the misconduct sweeps in whatever the officer did prior to the decision to  use force, along with the conduct of the victim. There is precedent for this. This year, both the Seattle Police Department and the Los Angeles Police Department expanded their definitions of reasonable use of force. Now, in Seattle, officers cannot use physical force “against individuals who only verbally confront them unless the vocalization impedes a legitimate law enforcement function or contains specific threats to harm the officers or others.” And in Los Angeles, the use of deadly force must include “consideration of not only the use of deadly force itself, but also an officer’s tactical conduct and decisions leading up to the use of force when determining its reasonableness.”

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