Deadly Discretion: The Failure of Police Use of Force Policies to Meet Fundamental International Human Rights Law and Standards

This post from the University of Chicago Law School’s International Human Rights Clinic summarizes timely and important research by the Clinic about police use of force policies. You can read the Clinic’s full report here.

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This Report is being published in the midst of a long series of horrifying incidents of police abuse of power in the United States. The deaths of George Floyd, Lacquan McDonald, Eric Garner, Michael Brown, Ahmaud Arbery, Tony McDade, Regis Korchinski-Paquet, Breonna Taylor, and many others have echoed throughout the communities of this nation and prompted protests across the country. The video and testimonies from these incidents provide grim illustrations of the power law enforcement officers have over the people they are sworn to serve and protect, and the deadly consequences when they abuse that power.

Society vests law enforcement with the responsibility to protect public safety and enforce the law when necessary. For these reasons, and these reasons only, law enforcement officers are granted the immense power to use force, including lethal force. This authority—state sanctioned violence—necessarily comes with limits and obligations to ensure those who enforce the law do not abuse it. These limits and obligations require that police use their power in a manner that protects and serves the entire community that has vested them with this privilege. The exercise of this authority also requires accountability when abuses occur. Without accountability, state sanctioned violence is nothing but the exercise of arbitrary brute force, a common tool of tyrannical and despotic governments.

This country lacks a comprehensive and effective national legal framework that places specific conditions on the use of force and establishes mechanisms of accountability. While the Constitution sets some limits on the use of force, the standards set by the Supreme Court in its case law fall woefully short of meeting the international standards, and Congress has failed to take action to fill this critical gap in federal law. Due to the decentralized nature of law enforcement in the United States, and the failure of national leadership to set uniform, federal standards, the main restrictions on police use of force exist at the state and local level. State law and police departmental policies provide the principles and standards on use of force and the consequences for when that authority is abused.

This Report evaluates the police policies from the 20 largest cities in the United States during 2017 to 2018. These internal departmental policies provide the primary guidance to police officers on when and how they may use lethal force. They are intended as manuals for officers on how to execute their duties, are written by police leadership and, for the most part, are adopted by the governing police boards. These policies provide the substantive standards that officers are trained on and the principles that departments must operationalize. Policy violations trigger internal and sometimes external reviews and possible disciplinary measures.

As the Report notes, the challenge of managing police power and balancing that power with basic human rights—such as the right to life and security of person—is a global one. To meet this global challenge, the 193 member countries of the United Nations, including the United States, have developed principles and standards to constrain the use of police power, including the U.N. Code of Conduct for Law Enforcement Officials; the U.N Basic Principles on the Use of Force and Firearms by Law Enforcement Officials; and the 2014 report by the U.N. Special Rapporteur on extrajudicial, summary or arbitrary executions on protection of the right to life during law enforcement. These principles require force be legal sanctioned; necessary and proportional to the danger presented; and that systems of accountability be in place to respond to unlawful uses of force by officers.

The human rights at stake in policing—the right to life and personal security as well as the freedom from discrimination—are bedrock guarantees, essential for the enjoyment of other fundamental human rights. Out of the 20 city police departments surveyed in this study, not one met the minimum standards established by human rights law. Even the two cities that had the best scoring policies, Chicago and Los Angeles, did not guarantee basic safeguards (i.e. necessity, proportionality and accountability) in the law.

Legality: No city satisfied the requirement of legality because no state has a human rights compliant state law. The failure to enact legislative standards on police use of force undermines the rule of law, frustrates accountability for misuse of state power, and weakens police department policies.

Necessity: Twelve city policies satisfied the necessity requirement, mandating immediacy of a particularized threat and the use of force as a last resort. Of the states that failed to satisfy this standard, eight policies contained various exceptions to the necessity requirement, such as permitting force when used to prevent a suspect’s escape. Indianapolis, which failed on each of the three necessity subcategories, allows for the use of force to prevent the commission of a felony. But the policy does not specify the kind felony or the nature of the threat posed by the felony, thereby allowing the use of lethal force when it may not be necessary.

Proportionality: Use of force must be proportional to the threat or resistance the officer confronts. Seventeen city policies met the proportionality standard. Others permitted the use of deadly force in cases of self-defense or to prevent the commission of a felony without specifying that the threat to the officer must be proportionate to the force used.

Accountability: Finally, compliance with the requirements of necessity, proportionality, and effective legality require accountability mechanisms that guarantee effective and independent investigation for all instances of the use of lethal force. While all 20 cities have internal reporting requirements, only two cities—Los Angeles and Chicago—require mandatory external reporting for all instances of the use of lethal force, as required by international standards. Internal reporting and review processes are important for police departments to self-evaluate and discipline their own. However, independent, external oversight mechanisms are necessary to ensure thorough investigations, achieve true accountability, and secure the public’s trust.

Recommendations:

LEGALITY: Use of force policies must sit within a human rights compliant federal and state legislative framework that properly balances security needs with individual human rights.

1. The federal government should ensure federal, state and local policing complies with international human rights standards and commitments of the United States. U.S. Congress should deploy its legislative and spending powers to ensure police use force in a human rights-compliant manner, including requiring that police use of force policies meet the standards of necessity, proportionality and accountability, and that law enforcement officers protect and enable individual human rights.

2. State legislatures should also enact legal limits on police use of force that comply with international human rights law and standards of necessity, proportionality and accountability and protect and enable individual human rights.

3. In light of extensive evidence of excessive use of force by federal, state and local law enforcement during lawful demonstrations, government at all levels should re-evaluate the presence of armed police during lawful public gatherings. For example, alternatives to law enforcement and unarmed and specialized community engagement police units have been shown to be more effective in providing assistance in organized events and public gatherings than armed units in other countries, as documented in Defending Dissent: Towards State Practices that Protect and Promote the Rights to Protest (IHRC / INCLO 2018).

NECESSITY: All law and policies on police use of force must comply with the necessity requirement and only allow for force when “absolutely necessary” to save the life of an officer or civilian as a “last resort” to other alternatives.

4. U.S. Congress should revise the standard under 42 U.S.C. § 1983 permitting police officers to use force from a “reasonableness” standard to “only as a last resort and when absolutely necessary to prevent death or serious bodily harm.”

5. U.S. Congress should legally require all federal law enforcement officers to use identified de-escalation techniques to de-escalate all threats posed to officers and others prior to the use of force and mandate all state and local law enforcement agencies accepting federal funds to require use of such techniques. De-escalation techniques include communication and verbal engagement, warnings and clear instructions, avoiding taunting or menacing language, evaluating the situation to identify alternative causes for lack of compliance (e.g., mental impairment, intoxication, fear, and language barriers), use of time and distance to create room for the situation to calm down, taking cover or disengaging.

6. U.S. Congress should eliminate by law the use of “no knock” warrants during all federal law enforcement investigations because they have led to the use of lethal force when it was not necessary or proportional.

7. State legislatures and state and local law enforcement agencies should require, by law and in departmental policies, that law enforcement officers use de-escalation techniques to de-escalate all threats posed to officers and others prior to the use of force. De-escalation techniques include communication and verbal engagement, warnings and clear instructions, avoiding taunting or menacing language, evaluating the situation to identify alternative causes for lack of compliance (e.g., mental impairment, intoxication, fear and language barriers), use of time and distance to create room for the situation to calm down, taking cover or disengaging.

8. State legislatures and state and local law enforcement agencies should require, by law and in departmental policies, any officer standing by while another officer uses unlawful force on a subject to intervene to stop the use of force.

9. State and local law enforcement agencies should remove from their policies any exceptions that permit the use of lethal force when the situation does not present an immediate and particularized threat of lethal force or serious bodily harm, and where the use of lethal force is not absolutely necessary as a last resort. This includes eliminating all “escaping suspect or fugitive exceptions” and all “blanket self-defense or prevention of crime exceptions” that allow the use of lethal force to capture a suspect, in self-defense or in response to the commission of a felony of any kind, regardless of the nature of the threat posed by the subject.

PROPORTIONALITY: In addition to being necessary, the use of force must always be proportionate to the threat the officer confronts and weighed against the fundamental human rights of the individual, including the rights to life and security of person.

10. U.S. Congress should condition all federal funds for state and local law enforcement agencies on the agencies’ review and elimination of the use of police techniques, tactics, and technologies that pose a risk of death or serious bodily harm but that are not necessary or proportional to the threats posed to officers or others, including chokeholds, carotid holds, neck restraints, tear gas, and rubber bullets, among others.

11. State legislatures and state and local law enforcement agencies should eliminate, by law and in departmental policies, the use of police techniques, tactics and technologies that pose a risk of death or serious bodily harm but that are not necessary or proportional to the threats posed to officers or others, including chokeholds, carotid holds, neck restraints, tear gas, and rubber bullets, among others.

12. State and local law enforcement policies should require that all use of force be strictly proportionate to the threat confronted, removing all exceptions or equivocations.

ACCOUNTABILITY: Accountability requires individual accountability as well as departmental transparency of use of force policies and practices.

13. U.S. Congress should require by law that the Department of Justice establish a program to collect, store, analyze and make public, data on police actions, including all incidents involving the use of lethal force, from the 50 U.S. states and territories, and mandate all state and local law enforcement agencies to report periodically with accurate and compre­hensive data on police actions to the Department of Justice.

14. U.S. Congress should eliminate by law the doctrine of “qualified immunity” for law enforce­ment officers prosecuted for violations of the Constitution under 42 U.S.C. § 1983.

15. U.S. Congress should revise 18 U.S.C. § 242 to lower the standard of criminal intent required to convict law enforcement officers of a criminal violation of constitutional rights from “willfully” to “knowingly or with reckless disregard.”

16. U.S. Congress should legally require all uniformed federal officers, at all times, to wear body cameras and use dashboard cameras and mandate state and local law enforcement agencies receiving federal funds to ensure their use by all state and local law enforcement officers.

17. State legislatures and state and local law enforcement agencies should require, by law and departmental policies, all state and local law enforcement officers, at all times, to wear body cameras and use dashboard cameras.

18. State and local law enforcement policies should mandate full reporting to an external, independent civilian oversight body empowered to conduct independent, publicly accessible investigations for every incident involving the use of deadly force, including any time an officer discharges a firearm or uses a technique, tactic or technology capable of causing death or serious bodily harm.

And to strengthen international norms and institutions to ensure policing protects and promotes international human rights, the authors recommend:

19. The Secretary-General of the United Nations, Mr. António Guterres, should convene a High-Level Panel on Law Enforcement and Human Rights to address police abuse of human rights around the world comprised of global leaders, eminent experts, people affected by police abuse and law enforcement representatives tasked with, among other things, reviewing and updating the U.N. Basic Principles on the Use of Force and Firearms by Law Enforcement Officials and developing a set of actionable recommendations to ensure policing is grounded in the protection and promotion of international human rights.

20. The United Nations General Assembly should convene a High-Level Meeting on Law Enforcement and Human Rights to address police abuse of human rights around the world during which Heads of Member States are called upon to review their national policies and practices and commit, through a Political Declaration, to ensuring all policing is grounded in the protection and promotion of international human rights.

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Featured Photo: Credit to Chad Davis