• Excessive Force By Law Enforcement

Excessive Force by Law Enforcement

In 1989, the United States Supreme Court in Graham v. Connor  held that an officer’s use of force must be objectively reasonable under the totality of circumstances known to the officer at the time. Force “must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight,” the court said.  “Reasonableness” is defined by a hypothetical person who “exercises average care, skill, and judgment in conduct that society requires of its members for protection of their own and others’ interests.”  This standard takes into account that “police are often forced to make split second judgments – in circumstances that are tense, uncertain and rapidly evolving – about the amount of force that is necessary in a particular situation.”

The result of the Supreme Court’s decision in Graham was that police officers are granted an incredible amount of discretion, often finding the law on their side.  Although this decision reaffirms each person’s Fourth Amendment rights, the objective reasonableness standard and the discretion allowed police opens the door to the potential for prejudice, bias and racial profiling.  And when African-American men are seen as inherently criminal and dangerous, deadly shootings by police are more often than not found to be reasonable. Anyone with a television, or simply a wireless internet connection, is no stranger to the apparent increase in police shootings in the past few years. Fatal shootings by police have made headlines every day, with the attention on them amplified by social media sharing platforms, and the proliferation of camera enabled cell-phones.  The Washington Post maintains a database of police shootings nationally, and as of September 2017, 697 people had been shot by police this year. The killing of Mike Brown in Ferguson, MO in 2014, and numerous high profile shootings since then, have placed a special focus on deadly and excessive use of force by police.

In January of 2017, 11 national police organizations issued a new model policy: the “National Consensus Policy Use of Force” with the stated purpose being to “provide law enforcement officers with guidelines for the use of less-lethal and deadly force.” Worth noting that the first stated policy is to “value and preserve human life.”  This policy incorporates “de-escalation” as an alternative use of deadly force, defined as

“taking action or communicating verbally or non-verbally during a potential force encounter in an attempt to stabilize the situation and reduce the immediacy of the threat so that more time, options, and resources can be called upon to resolve the situation without the use of force or with a reduction in the force necessary.”

Many local and state departments have rejected the so-called “National Consensus” as a one-size-doesn’t-fit-all solution. In 34 states, training decisions are left to local agencies. Most, though, conduct no, or very little, de-escalation training. Chiefs cite cost, lack of staff, and a belief that the training isn't needed. Versions of de-escalation training have been around for decades, but it entered the spotlight in 2015, when President Obama's Task Force on 21st Century Policing released its final report

The report prioritized de-escalation training for all police departments and emphasized the need for officers to establish a "guardian" mindset rather than a "warrior" way of thinking.   A deeper look into the records of 34 officers who shot unarmed people in 2015 and 2016 shows that more than half had obtained two or fewer hours of de-escalation training since at least 2012. Only one officer had received 40 hours, which is considered optimal.  More Here.

"The problem is, with 18,000 police departments [in the U.S.], you don't have any kind of uniform standards," said Chuck Wexler, executive director of the Police Executive Research Forum, which has been working to establish a de-escalation training model. The organization's "30 Guiding Principles on Use of Force," developed with input from chiefs and sheriffs nationwide, emphasize "proportionality," "de-escalation," and "the sanctity of human life," meaning all lives, not just officers' lives. Among more than 280 law enforcement agencies, new recruits received an average of 58 hours of firearms training and just eight hours of de-escalation training, according to the results of a 2015 survey by Wexler's organization.

But de-escalation does and can work. The Salt Lake City Police Department has gone more than a year and a half since its last fatal officer-involved shooting. Twenty months without a death due to their de-escalation training.

The Los Angeles Police Commission voted in April to require officers to try, whenever possible, to defuse tense encounters before firing their guns. The new rules formally incorporate a de-escalation into the Los Angeles Police Department’s policy outlining how and when officers can use deadly force. As a result, officers can now be judged specifically on whether they did all they could to reduce tensions before resorting to their firearms.

On the state level, at least five states – Colorado, Connecticut, Illinois, Utah and Washington – have enacted laws that either limit the use of certain types of force, such as chokeholds, or mandate or strengthen police training on the legal use of force. Some states have taken the additional step of requiring that such training include cultural sensitivity, bias free policing, or procedural justice components. 

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