Regulate Use of Force

In this month's issue, we draw on decades of Reason journalism about policing and criminal justice to make practical suggestions about how to use the momentum of this summer's tumultuous protests productively. Check out Damon Root on abolishing qualified immunity, Peter Suderman on busting the police unions, Jacob Sullum on ending the war on drugs, Sally Satel on rethinking crisis response, Zuri Davis on restricting asset forfeiture, Alec Ward on releasing body cam footage, Jonathan Blanks on stopping overpolicing, Stephen Davies on defunding the police, and Nick Gillespie interviewing former Reasoner Radley Balko on police militarization.

"Through a combination of specific legislative acts, departmental procedures, monopolistic default, and the general effect and aura of the laws they enforce, police have come to a point where, to one degree or another, they are above the law. Not only may (and do) and must police squash rights within the law, but, the degree depending on circumstances and motive, they may also do so outside the law."
Lanny Friedlander
"The Cops: Heroes or Villains?"
November 1969

As tens of thousands of Americans marched through the streets following the police killing of George Floyd in Minneapolis, city councils, state legislatures, and Congress all wrestled with how to address protesters' demands for an end to police brutality. One problem is that the standards for how and when police can use force on someone are complicated, and strong-sounding reforms have a funny way of getting neutered at the street level where day-to-day police interactions occur.

New York City banned police from using chokeholds, for instance, but that didn't stop New York Police Department (NYPD) officer Daniel Pantaleo from killing Eric Garner in 2014. Cities spent money on implicit bias and de-escalation training in the years following the rise of the Black Lives Matter movement, but Floyd still died with a knee on his neck. The number of fatal police shootings has hovered around 1,000 per year since 2015, according to a database created by The Washington Post.

Yet there are concrete policy changes that, taken together, could improve policing and reduce excessive force incidents.

Defining the Continuum of Force

One of the most pressing demands from activists is to change departments' use-of-force policies, which govern how and when police can initiate force against a person. Every department has its own procedures manual, and traditionally lawmakers and courts have been loath to second-guess how police do their job.

"Currently, what is generally the requirement in most police departments in most states is kind of a sliding scale [of force] that leaves a great deal of discretion to officers," says Suzanne Luban, a clinical supervising attorney and lecturer at Stanford Law School. "So officers are told to use the degree of force they deem reasonably necessary under the circumstances, and usually the part that's not said, but it is included in that, is to attain compliance."

But as Luban notes, "compliance" isn't always worth potentially maiming or killing someone, especially when the underlying crime is a petty misdemeanor. She cites cases like Israel Hernandez-Llach, an 18-year-old graffiti artist who died after being tased by Miami Beach police in 2013. The Miami state attorney found the use of force was legally justified, although the Miami Beach Police Department later settled a civil lawsuit filed by Hernandez-Llach's family.

Campaign Zero, a nonprofit group that advocates policing reforms, has called for numerous changes to use-of-force policies beyond banning chokeholds. These include requiring officers to use de-escalation tactics and verbal warnings, defining what kind of force is appropriate for a given level of resistance, and increasing scrutiny of an officer's tactics leading up to his or her use of deadly force.

Several states have already taken steps along those lines. In 2019, California enacted a law that raised the standard for when police officers can use deadly force. The new law allows such force only when the officer "reasonably believes" it is necessary to prevent death or serious injury, while the old standard allowed "reasonable force" during an arrest. (Notably, the legislation was watered down under pressure from police unions, leading Black Lives Matter groups to pull their support for it.)

Efforts to reform the use of force have exploded in the months following Floyd's death in late May. The Washington Post reported that by July, 26 of the 65 largest U.S. cities had enacted bans on police chokeholds. Utah passed a bill that makes it a third-degree felony for a police officer to kneel on a suspect's neck as a method of restraint and a first-degree felony if that action results in a person's death. And an NYPD officer was recently charged for using a prohibited chokehold on a suspect.

Other cities and states are hoping to break down the infamous "blue wall of silence" that encourages officers to ignore misconduct. The Atlanta City Council passed a package of reforms that, among other things, created a statutory duty for officers to intervene when they witness excessive force by one of their colleagues. The Massachusetts Senate passed a similar requirement as part of a reform package.

Several municipalities and states have also considered or passed legislation banning police from shooting at moving cars or firing "non-lethal" projectiles at protesters' heads.

Yet the targeting of specific police tactics can only do so much, according to Luban. "Those are all important reforms," she says, "but that's not going to produce the holistic change that we need. It's just reactive. What we need to do is address on multiple levels the lack of trust and accountability with police officers, and try to change the warrior culture that is in police departments."

Addressing the Warrior Mentality

In 2016, Jeronimo Yanez, a 28-year-old suburban Minneapolis police officer, fatally shot Philando Castile during a routine traffic stop. Two years before, Yanez had attended a class called "The Bulletproof Warrior" developed by military veteran David Grossman.

Grossman's course is one of many offered to police officers around the country that promise to help cops make it home safe every night by instilling in them a warrior mentality. The New York Times, describing one of the booklets from Grossman's class, reported that it "portrays a world of constant and increased threat to officers, despite more than two decades of declining violent crime in the United States."

To prevent unnecessary loss of life, departments should emphasize de-escalation training and discourage or prevent officers from taking classes that cultivate itchy trigger fingers. The us vs. them mentality, fueled by overheated narratives about a "war on cops," will be hard to shake, however.

In Minneapolis, about a year before Floyd's death, Mayor Jacob Frey tried to ban the city police department from sending officers to warrior-mentality training courses. "When you're conditioned to believe that every person encountered poses a threat to your existence, you simply cannot be expected to build out meaningful relationships with those same people," Frey said.

In response, the local police union set up a fund to privately pay for officers to attend the courses.

Because use-of-force incidents often turn on the judgment and character of one officer in one of America's roughly 18,000 law enforcement agencies, there is no cure-all law that will immediately stop brutality. But steps like strictly defining what levels of force are appropriate, raising the standards for the use of potentially deadly force, and keeping cops out of training that warps the way they look at everyone else could at least help create a framework for changing an internal culture that has for too long been left to police itself.