Addressing Police Brutality
George Floyd’s tragic death has set off historic protests around the country. I attended a vigil for his death in upstate New York and it was very touching and peaceful.
I decided to research the best approaches to addressing police brutality borne out by evidence and research, measures of the extent of the problem, the legal standard for officers and effective policy recommendations. Here is what I found.
I knew from my time running for President how big a problem police brutality is around the country and how little we have done about it. In 1994 Congress passed a law in response to the Rodney King riots requiring police departments to document how many people they kill or die in custody every year. Very few police departments actually did so. Similarly, the Death in Custody Reporting Act, which was reauthorized by Congress in 2014, requires states receiving federal funding for law enforcement to report all killings by police officers on a quarterly basis. Many states have ignored this law without penalty.
The estimates we have of the number of police shootings per year come from compiling local news reports. The most commonly cited source is from the Guardian, a British newspaper that started cataloguing deaths and sending questionnaires years ago. The FBI started to use the Guardian’s reporting as a baseline which significantly increased their previous reported number. James Comey, the head of the FBI at the time, called it “unacceptable” and “embarrassing and ridiculous” that the FBI relied upon the Guardian and similar reporting in the Washington Post to determine how many police violence deaths there were each year.
These reports say that more than 1,000 people are killed by police officers or in custody each year. From 2015 to 2019 the numbers were 1,146, 1,092, 987, 992, and 1004 respectively. That’s about 3 Americans a day.
There is another significant indicator of the extent of the police brutality problem: lawsuits. Across the country cities are spending hundreds of millions of dollars a year paying victims of police misconduct. New York City spent a staggering $710 million a year on payouts for police-related lawsuits in recent years — the entire NYPD’s budget is $6 billion. Chicago spent $153 million per year on payouts. Police brutality is incredibly expensive, not just in human life and public trust, but in monetary costs that drain public money that could go to schools, health care or infrastructure. Total payouts to plaintiffs cost communities over a billion dollars a year, and that doesn’t include litigation costs and insurance premiums, which cost hundreds of millions more.
In some cases, these costs have actually bankrupted communities. In 2018, a jury returned a $15 million verdict for the death of Leonard Thomas in Lakewood, Washington, who was unarmed when a police sniper shot him. The damages, after insurance, were the equivalent of 18 percent of the city’s annual budget. In Sorrento, Louisiana, the police department was disbanded when a lawsuit against an overzealous officer resulted in the town’s insurance company declining to cover the town further.
These costs are even more shocking given the legal barriers citizens have to overcome to successfully sue police departments and cities. There is a very high threshold to successfully sue a police officer or department. A plaintiff has to sue officers in civil court for violating Constitutional rights. The legal doctrine of Qualified Immunity shields government officials from liability for damages as long as they did not violate “clearly established” law. According to the Supreme Court, law is “clearly established” only when a prior court has held that an officer violated the Constitution under virtually identical circumstances. This turns out to be trickier than you might think. In one case, Nashville police officers released their dog on Alexander Baxter, a burglary suspect, who had surrendered and was sitting with his hands raised. A prior court had held that officers violated a suspect’s rights when they released a police dog on him after he had surrendered by lying down. But the appeals court in the Baxter case ruled that there was a difference between a suspect who had surrendered lying prone versus one who was sitting with his hands raised. Another case distinguished between a woman walking away from an officer who had ordered her to come back — she was slammed to the ground, suffering a broken clavicle — and another who had walked away from an officer who did not give such an order.
In 2014, the US Supreme Court in Plumhoff v. Rickard found that even egregious police conduct may not be enough to violate a citizen’s Constitutional rights. In that case, the police in Arkansas shot and killed the driver and passenger of a car speeding away from them with 15 shots into the car. The Supreme Court said that the police were justified in shooting at the car to stop it because it posed a threat to public safety — despite the fact that law enforcement agencies discourage shooting at a moving vehicle. The standard the Supreme Court has offered is that ‘every reasonable official’ would have to know that the conduct is unlawful. The Supreme Court has similarly held that a municipality cannot be held liable for the act of an official unless the city’s policy violates the Constitution — the act of the official is by itself not enough.
Aside from the legal standard, the average plaintiff may not have much in the way of access to legal help or savings to be able to back a lawsuit for months; though plaintiff lawyers generally work on commission, lawsuits take time and energy. On the other side, the city will have a team of lawyers on staff who may be backed up by insurance lawyers looking to lower their potential liability; it’s not a fair fight.
On the criminal action side, district attorneys work with law enforcement officers every day. Said attorney and activist Bakari Sellers, “the relationship between law enforcement and prosecutors is incestuous because every prosecutor relies on law enforcement to make their cases, and so it’s kind of hard for you to then go in the family and ask that same prosecutor to prosecute somebody who’s been helping them make cases.” It’s unrealistic to expect district attorneys to turn on their partners in law enforcement unless there are extraordinary circumstances and public pressure. Mayors and local officials are similarly loathe to antagonize law enforcement members that are often among their most powerful and unified constituents — antagonizing local law enforcement is essentially political suicide.
Against this backdrop and facing such a high set of standards, the fact that citizens have won over $1 billion in civil judgments against police departments across the country per year in recent years is staggering, and evidence that the true scope of police damages against citizens is some multiple billions of dollars per year.
In 2018 there were 686,665 police officers in 18,000 local police departments across the country, from the tiniest police department in rural America to the NYPD. How can one meaningfully reform behaviors nationwide?
Samuel Sinyangwe, co-founder of Campaign Zero, is a data scientist who has been researching police violence data and different policy responses for years. He has identified a number of changes that correspond to lower loss of life in encounters with police.
The first is direct and obvious — more restrictive rules and laws governing use of force. Police departments have rules and guidelines as to what techniques they can use in different situations. Banning chokeholds, requiring a warning before shooting, requiring de-escalation and a continuum of force, requiring exhaustion of non-lethal alternatives and banning firing at moving vehicles can all reduce deadly encounters. So can having a duty to intervene if another officer uses excessive force. Campaign Zero estimates that adopting these measures and reporting could reduce deaths by police violence by as much as 72%.
This would dramatically change the sort of training officers receive. One survey of 280 different law enforcement organizations reported that new recruits received an average of 58 hours on shooting a gun and using deadly force and only 8 hours on de-escalating violence. De-escalation is a set of actions to slow down an incident that allows officers more time and distance to peacefully resolve a conflict. Unfortunately many officers right now are trained to speed up and escalate rather than slow down and de-escalate.
Tracking complaints about officers’ excessive use of force would also reduce violent behaviors in other ways. Prior complaints indicate a higher chance for future complaints. So does being around other police officers who receive a high level of complaints for excessive force. Researchers studied more than 8,000 Chicago police officers named in multiple complaints between 2005 and 2017. Their analysis found that the more officers with histories of excessive force were in a group, the higher the risk that other officers in that group would have complaints lodged against them.
This makes perfect sense; if I’m a new cop and I’m around a bunch of guys who frequently use excessive force on suspects, I’m more likely to also use force in situations it may not be warranted. Said one of the study’s authors, Andrew Papachristos, “How we pair and assign officers matters — a lot. Officers with a history of abuse have a pretty strong influence on subsequent behavior of other officers.” Tracking behavior and separating officers can reduce the frequency that others develop similar practices. So can tracking disciplined or fired officers so that, if they are fired, they can’t simply get a job in a new town.
The third method is eliminating language in police union contracts that restrict officer accountability. Police unions naturally seek to limit liability for the officers they represent. Common provisions in union contracts include restrictions on officers being interrogated after the fact, disqualification of certain complaints, officer access to privileged information while being investigated, erasing records of misconduct over time and an appeal for reinstatement. One investigation found that 24% of officers, 451 out of 1,881, who were fired for misconduct between 2006 and 2017 got their jobs back through appeal, in some cases over the objection of the police chief. For example, Sergeant Brian Miller in Florida was fired for hiding behind his car during the Parkland school shooting instead of intervening. He was given his job back on a technicality and reinstated with back pay due to union rules.
Another data-driven approach is to scale up other organizations to respond to emergency calls instead of the police. According to the Treatment Advocacy Center, one in every four people killed by police has a serious mental illness. One can easily imagine police officers giving orders that are ignored due to someone’s mental incapacity. Many police calls involve domestic disturbances, substance abuse or homelessness that could be addressed by crisis workers or social workers.
In Eugene, Oregon, an organization called Cahoots — Crisis Assistance Helping Out on the Street — consists of medics and mental health crisis managers who respond to nearly 20% of public safety call volume. “They don’t need jail. What they need is to be de-escalated from their crisis, they need a ride to a mental-health facility or to a medical-care facility or wrapped around with services,” said Eugene Police Chief Chris Skinner. Cahoots is now expanding to Denver and other cities due to its success. The more non-police organizations respond to different types of calls, the lower the chances of an encounter that goes wrong. Ideally more resources would go to these kinds of interventions within communities to diminish the need for police responses.
The fifth approach to alleviating police violence that has worked is federal oversight. Departments that went through federal investigations led by the Department of Justice and subsequently adopted new policies saw police shootings fall by between 27 and 35%. Increased federal oversight and investigation are crucial given the incentives running against local district attorneys and officials confronting bad cops. If you’re a local DA you would love to have the Feds available to handle an investigation free of local pressure. The standards for federal investigation should change from systemic patterns and practices to triggers for elevated rates of police violence, and increased personnel should be dedicated to rooting out abusive officers and departments.
In deeply troubled departments, as with Minneapolis and Camden, disbanding a police force and reconstituting it from the ground up may be the best approach to reforming practices.
The sixth evidence-backed approach is demilitarization. Since 1997, 8,000 police departments have received more than $5.1 billion in surplus military equipment from the Department of Defense under Program 1033. This includes clothing and computers all the way up to armored vehicles and grenade launchers. One study showed that receiving more military equipment increased police-related deaths in a district — officially any received equipment must be used within a year or be returned. So if you have an armored vehicle and grenade launchers, you want to use them occasionally. The equipment is free of charge to the police department beyond shipping and upkeep.
President Obama reined in the program in 2015 and barred certain types of equipment, but this was reversed by Trump two years later. Restricting transfers of high-impact weapons would reduce civilian deaths and weaken the culture of militarization that has swept many police departments.
If you’ve made it this far, you are a very thorough reader. The TLDR; police violence is an enormous issue, we are doing too little about it, and there are things we can do that would help. There are at least 6 data-driven policies that also jive with common sense.
We will continue to learn and grow in what the right things to do are based on activists and those who are most impacted by police violence in their communities. They will know best what the right approaches will be in their daily lives. I’ve learned a lot each day.
As I write this the Democrats are preparing a police reform bill that addresses many of these issues. It would ban chokeholds, limit qualified immunity, create a national misconduct registry, reduce transfers of military gear and lower the standard for federal oversight. From what I have seen these are all moves in the right direction. Let’s help them pass it and do the right thing.
I hope that George Floyd’s death results in real change that will make it so that the next person’s daughter doesn’t have to ask why and how her father died. We owe him and ourselves at least that much. Let’s fight for it.