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 minorities face a significantly higher risk than other citizens of becoming victims of police violence, and that members of racial and ethnic minorities 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 minorities 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.

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, 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 2008 survey, the Bureau of Justice Statistics reported that among those who had come into contact with the police that year, around 1.4 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 U.S. Supreme Court guidelines. By 2004, approximately thirty states had laws on their books allowing police officers to use all means necessary to effect arrests, including arrests of unarmed citizens suspected of nonviolent crimes. 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 has 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 affecting 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:

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 and held by the Department of Justice do not include injuries that fall short of death and also are known to be inaccurate.

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 minorities 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. A few 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. However, less than 1 percent of cases reported to the US Department of Justice actually lead to prosecution.

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.

Holona L. Ochs

Updated by Kuroki M. Gonzalzles

Further Reading

See also Assault and battery; Civilian review boards; Confessions; Deadly force; Graham v. Connor; Internal affairs; King beating case; Police; Police corruption; Police ethics; Reasonable force; Special weapons and tactics teams (SWAT); Tennessee v. Garner; Wickersham Commission.