Do Police Officers Need Less Rights?

 

police-force-rights

The Rojek article explains that for force to have been used correctly by police, all attempts to negotiate a non-physical outcome to the situation must have been used unsuccessfully (Rojek, 2010, p. 302). In other words, there must be no other options besides force.

This is affirmed by the U.S. Supreme Court opinion in Graham v. Conner (1989). In this case Graham, a diabetic and owner of Southcoast Xterminating, was pulled over and cuffed after suspiciously leaving a convenient store in a hasty manner. He had entered the store in search of orange juice because he was having an insulin reaction, and after noticing the lines were too long, he quickly left. The police used force to apprehend Graham and left him with multiple injuries. The court ruled that the use of force must be reasonable.

Whether the use of force was reasonable or excessive depends on the need for the officer to use force in order to control the citizen resisting and regain control of the situation. In situations involving force, police officers expect citizens to accept the officer’s legitimacy. Officer legitimacy is the righteousness of the officer to rule, in other words having command authority over the situation at hand. Officers are supposed to enforce laws and reinforce public standards of conduct. If the officer’s legitimacy is not recognized by the civilian and resistance of any kind is presented, officers will attempt to reestablish control over the situation (Rojek, 2010, p. 302).

According to Micucci, and Gomme (2005), there are several reasons that excessive force is problematic. The excessive use of force goes against the freedoms that all citizens enjoy, thus decreasing citizen views on police legitimacy and decreasing the effect of community policing. Community policing strives to increase positive police/civilian interaction. If civilians don’t consider the police to be legitimate, they are less likely to engage in day-to-day interaction. Less crime will be reported and there will be fewer calls for service when needed (Micucci & Gomme, 2005). An example of the harsh effect excessive use of force has on the civilian populace would be the Rodney King Riots of 1992.  In this case, four Los Angeles police officers had been filmed beating Rodney King, a black civilian motorist. All four officers were found to be not guilty (Matheson & Baade, 2004, p. 2691).  Because of this, Los Angeles ended up being home to one of the largest riots the United States had ever seen. Extensive loss of life and destruction of property lead to a cumulated $125 million in sales tax revenue loss (Matheson & Baade, 2004, p. 2691). The second reason that excessive force is harmful is that it endangers citizen and officer safety. Besides possible injury and death, excessive force makes those who find out fearful of police interaction.

The degree of resistance given by the civilian dictates the level of force used to gain control (Alpert, 2001). The officer is in many cases, the only judge of whether or not the level of force used was necessary. In court, if there is no video, audio, or witness evidence, the account and incident report of the officer can be overpowering. In many cases, the officers can justify the use of force by simply stating that there was a threat to officer or public safety (Alpert, 2001). Findings show that rates of use of force are lower in agencies with higher levels of accountability; this logically means that agencies with more accountability discourage the use of force (Alpert, 2001). It can also mean that because of increased accountability, officers are no longer deviating from justified procedure. If an officer is fearful of litigation, reprimand, or an incident investigation, he or she will be less likely to act outside of training and department policy.

A recent account of excessive use of force was made public on CNN. In this case, audio and video evidence was recorded by onlookers. A black man walking down the street in St. Paul that fit the description of a reported stalker was approached by a single officer in a patrol car. When the man resisted, stating that there was no warrant for his arrest, and no real reason for the arrest, he was pepper sprayed. He then lay down on the concrete face down. At this time the man is still verbally resisting the officer. At one point the man starts to choke and vomit from the pepper spray. The officer in the video is then seen kicking the man in the chest which makes the man place his hands behind his back. He is cuffed on camera, and lifted to his feet by his hair. Another officer approaches, and together the two officers slam the man into the patrol car and initiate a frisk. At that time, five to six other patrol cars arrive at the scene. If cameras had not been rolling and the man was alone, this case would have never come to light. The police could have justified the use of force by playing it off as necessary in order to gain control of a suspect that is a potential threat to safety. The report could have included testimony from the officers involved, which would override that of the suspect. In this case, force was not used reasonably in order to restrain the suspect. The suspect is seen only giving verbal resistance and is met by the police with physical force.

A community’s level of trust is strongly influenced by media reports, these raise a level of broad public concern and as well as complaints, which drive legal reform (Jefferis, 1997). As more and more police interaction is being recorded, more and more negative recordings become popularly viewed, public distrust of the police increases, especially in the case of minorities. Over 75 percent of the public claim they from their opinions about justice from what they see or read in the news, which is more than three time the number who say they get their primary information on crime form personal experience (Pollak & Kubrin, 2007, p. 61). This means that when news about a police brutality case is aired and video evidence is shown, 75 percent of those watching just formed a negative opinion about the police. The video mentioned above has over 11,000 views and was only posted three months ago. This means that approximately 11,000 people may now have discontent towards the police. If the police can’t be trusted then people are less likely to call upon them and use them for order maintenance or any other reason. This is an obstacle to agencies that use community policing.

To increase accountability, some agencies are starting to require supervisor control-of-persons reports, in which the supervisor travels to the scene of the incident and interviews/records the accounts of the officers, witnesses, and suspects (Alpert & Smith, 1999, p. 66).  Supervisors can also take pictures of sustained injuries to officers or suspects in order to efficiently document evidence for the courts. If a suspect claims injury, this type of report can help confirm the facts. This type of report is very helpful, not only because it takes into account the suspect’s and witness’ perspectives every time, but also documents facts that can be later used in court. These types of reports also accurately help gather demographic data on suspects. The Miami-Dade supervisor control-of-persons report has entire sections dedicated to finding a suspects race, ethnicity, disease, impairment, gender and observed behavior (Terrill, 2003, p. 152). Previously, victim and witness accounts were only initiated by the victim. This new level of accountability can positively identify the situation from multiple points of view. Reports such as these, force management to become involved and lead to even higher accountability (Terrill, 2003, p. 152). Also, if the civilian population knows that management shows interest in the situation, legitimacy is further solidified (Terrill, 2003, p. 152).

The Miami-Dade version of the supervisor control-of-persons report should be used as a positive model for other departments. This model requires the supervisor to record the facts of the case, as well as a detailed description of each party’s behaviors and points of view (Terrill, 2003, p. 153). Using this model gives the courts multiple viewpoints from which to decide a case. According to a study by Alpert (2001), only 52 percent of the institutions that completed surveys use supervisor control-of-persons reports. This is important because it infers that factual details in many cases may be excluded. If all officer actions held management accountable there would be greater emphasis on training and much more interest in providing solid evidence that ok’s the use of force. If departments cannot implement the Miami-Dade model they should at least set a goal to use the reports on cases where use of physical force is prevalent.

Management and citizen reports restrict the policing subculture. Policing subculture encourages police to support each other, in some instances even if this means not reporting incidents in order to spare a partner from prosecution (Micucci, 2005). This is known as the ‘code of silence’ (Phillips, 2010, p. 199). Because officers understand that mistakes occur in the line of duty, they keep silent, thus ruining any communication transferring up through the chain of command (Phillips, 2010, p. 199). According to a survey by Phillips (2010) less than 15 percent of officers reported that their fellow officers would be likely to report unreasonable behavior to their superiors (Phillips, 2010, p. 204). In other words, 15 percent of officers in the sample believe that excessive use of force would be reported. This infers that 85 percent of officers would keep silent if they witnessed a fellow officer using excessive force. If supervisors are not notified then disciplinary action and corrective training cannot take place. Also included in Phillips’ findings was the fact that officers found excessive use of force to be reasonable if the suspect was attempting to flee (Phillips, 2010, p. 204).

Fearful people, especially minorities, have a higher chance of resisting and or fleeing, which can be a danger for suspects as well as officers. Minority groups report more use of excessive force (Johnson & Kuhns, 2009, p. 597). This is due to an increased amount of contact with police and an increased amount of arrests. Certain societal groups such as minorities and those of low socioeconomic status are more likely to experience coercive force by the police than whites or those of higher socioeconomic status (Lersch, Bazley, Mieczkowski & Childs, 2008, p. 285). This likely makes poor and minority populations more fearful of police interaction than whites and those that are rich(Chapman, 2011, p. 421). Since crime occurs most in neighborhoods with a high population of minorities and those of low socioeconomic status, officers are more likely to patrol these areas (Lersch, Bazley, Mieczkowski & Childs, 2008, p. 285). As stated above, officers are accepting of excessive force if the suspect if fleeing, therefore minority groups and the poor are more likely to be detained using excessive force because they are more likely to attempt to flee from officers.

If the managing officer directly interviews and questions the officers involved as well as the suspects and witnesses there should be no way for the policing subculture to defend a guilty officer. In some departments, though rare, for reasons of departmental liability, officer excessive use of force is only brought up and corrected if the evidence against the officer is substantial, and the case is widely publicized (Micucci, 2005). Because departments try to maintain legitimacy through the policing subculture, it is hard for officers to admit liability in these cases. Policing subculture also may pressure officers to use excessive force. If officers do not use enough force during an apprehension the policing subculture subjects them to gossip, and reprimand (Alpert, 2001). If management sets strict and specific guidelines for physical apprehension, guidelines that become part of the subculture, then the old subculture of defending each other will instead back those who follow the rules. This can help limit police discretion.

The policing subculture also shapes officer opinions about what is acceptable and what is not in regards to the application of force. A survey conducted by Weisburd and Greenspan (2000) found that out of 925 police officers contained in the sample, a substantial minority believed that their fellow officers should be allowed to use greater force than the law allows (Phillips, 2010, p. 199). This same minority believed that it is acceptable to use more force than permitted. In other words, there was a minority group within the sample that believed that excessive use of force is reasonable.

Another way of increasing accountability is by requiring officers to pay for their own occupational liability insurance. Police brutality takes place due to a lack of accountability by superiors. To fix the problem the theory of deterrence must be applied. Deterrence is based of utilitarian theory which states that humans weigh risks and benefits before committing a crime (Tittle, Botchkovar & Antonaccio, 2010, p. 226). Likewise if an officer is forced to pay for insurance, he or she will be deterred from police brutality through the threat of increased premiums. If the threat of being fired or even prosecuted is regularly mentioned during training, the deterring effect will drive officers to follow procedure (Tittle, Botchkovar & Antonaccio, 2010, p. 226).

Statistically, police rarely have to use force (Adams, 1999). In recent times, a study by Lagan, Greenfeld, Smith, Durose, and Levin (2001) found that less than one percent of all police encounters required the use of force. Though cases are rare, data also states that force is unjustified or excessive in 21percent of all use of force cases (McEwen, 1996, p. 71). A study by Pate and Fridell received 1,111 surveys from over 1000 different law enforcement agencies in 1991. These surveys quantified the number of use of force incidents per 1,000 police personnel (McEwen, 1996, p. 32). For data please refer to Exhibit 2. Out of 1000 officers, 272 had used bodily force, and 129 had drawn their weapons (McEwen, 1996, p. 34). If this is true, according to Adams and Reiss who state that 33percent of use of force cases were unjustified or excessive, there were approximately 90 unjustified or excessive bodily use of force cases, and approximately 42 cases in which an officer drew his/her firearm wrongfully per 1000 officers. Combined, that leaves 132 openings for litigation against various police departments. If the prosecution against the department is successful millions could be awarded. In times of recession, the last thing overburdened departments need is expensive settlements. With that being said, there is an extreme need for more accountability. Management must be held accountable and civilian perspectives must be accounted for in order to better solidify the legitimacy of law enforcement agencies, protect these agencies from litigation, and increase positive public interaction.

Police departments and agencies, especially supervisors and management officials, should aim to not only increase accountability, but to reduce the amount of force needed in order to solve conflicts. Doing so will limit and reduce the chances that bodily injury to officers and suspects will occur. To do this, there should be a revamp of the current military style of hand to hand training. For police, hand to hand training is taught by instructors throughout the academies. Just as military training is, police training has been formatted and applied so that all applicants, tall, short, weak, and strong can be taught. This means with the time allotted, the intensity and sophistication of the training is quite rudimentary. An example of this is that once academy training and testing is completed there are no formal tests that officers must do after their careers have started that directly involve prisoner apprehension. Sure training may continue, however no officer is held to a standardized regular testing schedule (Adams, 1999).

When compared to those that study the martial arts or mixed martial arts and become confident in using take downs and proper control forms, police training is extremely inadequate.  A student at a Kajukenbo dojo for example, is tested regularly, is instructed to use forms and moves that fit his/her physical abilities and is regularly and harshly tested using street fighting scenarios and live sparring exercises. The training, in some instances, is live so that the person being trained actually experiences the realities of hand-to-hand combat. Another important fact to note is that this type of specialized training continues and advances for upwards of 30 years. If we held police to these same standards, cases where police excessively use force can be lessened and officer training can be held accountable for any infractions (McEwen, 1996, p. 2).

Another method of reducing the number of excessive force applications is through the use of less-than-lethal weapons. Traditional less-than-lethal weapons employed in the field include batons, physical force of the officer, and canines. Suspects have a greater likelihood of sustaining an injury when these antiquated methods are used in apprehension (MacDonald, Kaminski & Smith, 2009, p. 2268). When less-than-lethal weapons are used suspects have a lesser likelihood of sustaining injuries. Modern less than lethal weapons include pepper spray, conductive energy devices, and tear gas (MacDonald, Kaminski & Smith, 2009, p. 2268).

One issue with departmental control over officer use of force arises when canines are used. According to the Supreme Court ruling in Tennessee v. Garner (1985) apprehensions involving deadly force are subject to reasonableness guidelines in the Fourth Amendment (Dorriety, 2005, p. 92). There are two types of apprehension training for police canines. The first is referred to as bite and hold, this method is used when a dog is searching for and has found a suspect. If a trained police dog is used in the apprehension of a suspect and physical contact is made between the dog and the suspect a minimum of loss of blood should be expected. Severe lacerations may, in some cases, lead to death. If a dog acts on his or her training, in almost every case of physical contact there is a substantial risk of injury or death to the suspect (Dorriety, 2005, p. 92).

Those in favor of using the bite and hold technique, are also in favor of strict canine training. Training should allow the dog to have no power in making decisions (Dorriety, 2005, p. 94). All commands should come directly from the handler so that responsibility for the action is not shared by the dog. Handlers using this method have been taught to keep within the range of verbal communication so that control is not lost. Another favorable feature of the bite and hold technique is inherent officer safety. In all cases of apprehension, there is a threat that the suspect may be armed. If a suspect is being bitten and held by a nearly 100 pound German Shepherd, he or she is likely to be distracted enough to shift focus away from the officer. The officer is then free to approach and take control of the situation (Dorriety, 2005, p. 95).

The second type of apprehension technique is referred to as circle and bark. This technique is used typically when a suspect has been found and is remaining still (Dorriety, 2005, p. 92). Favorable features of this technique include the ability to gain compliance from the suspect and at the same time know the location of the dog. Because of the lesser risk associated with this technique, departments should strive to use it in all situations that are not defensive in nature (Dorriety, 2005, p. 94). This technique can be used when searching vehicles and or buildings for suspects. Only when there exists risk of harm to the dog, officer, or a civilian should the permission to bite be given. In using both techniques, the severity of the crime and character of the suspect should be taken into account when deciding to use a canine (Dorriety, 2005, p. 94).

Studies have suggested that great deductions in the numbers of injuries to suspects, as well as attacks against officers are a direct result of the departmental use of less-than-lethal weapons (MacDonald, Kaminski & Smith, 2009, p. 2268). These weapons are not perfect due to the fact that not all suspects are in suitable physical condition. If, for instance, a Taser is used on someone who has heart disorders a heart attack and cardiac arrest may occur killing the suspect. If tear gas is used on a crowd, the likeliness of people sustaining superficial injuries from falling increases (MacDonald, Kaminski & Smith, 2009, p. 2268). Other research shows that the majority of deaths associated with less-than-lethal weapons use are due do asphyxiation, drug use, and preexisting medical conditions (MacDonald, Kaminski & Smith, 2009, p. 2268). A study by MacDonald, Kaminski and Smith shows that about 39 percent of use of force cases concluded in injury to a suspect, when less-than-lethal weapons are used the chance of injury dropped to around 22 percent for pepper spray, and 25 percent for Tasers (MacDonald, Kaminski & Smith, 2009, p. 2270).

As of 2013, no program exists to collect use of force data nationally. Creating such a system would benefit the country as a whole. Congress cannot require that such a program be created; however, they can use their spending power to conditionally allocate funding for agencies that adopt said programs (Smith, 2008, p. 620). An early example of this is the National Institute of Justice funding the International Association of Chiefs of Police. This program developed a national database for police use of force reporting, and recorded information on over 177,000 police use of force encounters with civilians. Unfortunately shortly after data was produced funding was cut and the program ceased to exist (Smith, 2008, p. 620).

Another way of coercing departments nationally to adopt use of force data collection programs, is by making the option voluntary (Smith, 2008, p. 620). This option may work, however, without financial incentive departments have no reason to participate. To get around this obstacle, federal grant incentives should be proposed for those willing to participate (Smith, 2008, p. 621). Use of force data should not only record data on the interaction, but also the types of injuries that resulted from use of force. Doing so would allow departments to form beneficial training programs and equip officers with less-than-lethal weapons in order to reduce risk of harm (Smith, 2008, p. 625).

Legislation can also help reduce the chances physical force will be used. According the FBI’s 2011 Uniformed Crime Report, marijuana is the most frequently used narcotic in the United States, and 50% of drug arrests were marijuana related (FBI, 2011). At the federal level, the sale of less than one pound of marijuana can mean up to five years in prison and up to $250,000 in fines (Norml, 2013). There is an increased chance that force will be used during an arrest due to such a high volume of cases. In 2009, there were 130,317 juvenile arrests for drug abuse offenses. Of those arrests 9,871 were for sale and manufacture of marijuana. There were another 90,927 arrests in the juvenile marijuana possession category (United States Census, 2009). That means that approximately 100,800 juveniles were arrested for marijuana related offences alone, inferring that approximately 77% of all juvenile arrests for drug abuse offences were marijuana related. Juveniles, as well as adults, are exposed to increased risk of injury during the arrest. If the reason for the stop and subsequent arrest of a suspect was a non-violent drug offense, the increased risk of injury is not warranted. In 2013, both Washington and Colorado legalized marijuana for both production and distribution at the state level (Weiss, 2013, p.16). There is to be regulation, however, only time will tell if this works and if it has any real effect on arrest rates. One can only speculate that marijuana legalization may drastically decrease the arrest rate and thus the rate of excessive use of force cases.

The last method by which improvements to the current criminal justice system can be made, is the continuation and improvement of valuable research. When looking at quantified data, it is important to note that in some cases the data has little connection to certain areas of the country. Research should be specific to the jurisdiction. Applying this principal will give us accurate data taking into account population demographics. As stated above, less than 1percent of police interactions become physical, this fact could be completely different in South Central Los Angeles or on the Vegas Strip. Research and data collection should not only include the accounts of the suspect, but also the accounts of pedestrians that witnessed the incident. Witnesses as well as suspects should be more appropriately catalogued and should take more of a stand in court in the defense or prosecution of the suspect.

The use of force by police is a rare event, however, currently; the likeliness that the use of force is excessive or unjustified is high. With the economy in recession, it is important to combat possible litigation against police departments. To combat unjustified use of force and possible litigation, the degree of officer discretion must be fixed by management with strict and commonly known guidelines on how to react to suspect resistance. Less than lethal weapons should be deployed as much as possible to reduce risk of harm to suspects and officers. Management must expand accountability to themselves as well as witness and suspects in order to form a more solid account of incidents. The officer who used the force should not be the one who judges whether or not the action was reasonable.  Inputs from witness and suspects will not only work to solve the problem of excessive force, but will also affirm departmental legitimacy in the eyes of the civilian populace, thus aiding the community policing effort. A revamp of the current hand to hand combat training should be produced. If police are held to the same standards of those in M.M.A or martial arts, a guaranteed level of control and effectiveness in situations where force is used can be expected. Finally, through more exacting research of the use of force in the eyes of suspects and witnesses, and through the lens of applicable social demographics, departments can properly combat their own wrongdoings and defend against substantial financial litigation.

References:

Adams, K. (1999). What we know about use of force by police: overview of national and local data.  Nat. Institute of Justice and Bureau of Justice Statistics. Retrieved from https://www.ncjrs.gov/pdffiles1/nij/176330-1.pdf

FBI. (2011). Uniform Crime Report: Arrests. Retrieved from http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2011/crime-in-the-u.s.-2011/persons-arrested/persons-arrested

Jefferis, Eric,. Kaminsk, Robert,. Holmes, Stephen,. & Hanley, Dena. (1997). The effect of a videotaped arrest on public perceptions of police use of force. Journal of Criminal Justice, 25 (5), 381-395.

Kubrin, Charis E. Pollak, Jessica M. (2007). Crime in the news: how crimes, offenders and victims are portrayed in the media. Journal of Criminal Justice and Popular Culture 14(1), 59-83. Retrieved from http://www.albany.edu/scj/jcjpc/vol14is1/pollak.pdf

Langan, P. Greenfeld, Smith., Durose, Levin. (2001). Contacts between police and the public: findings from the 1999 national survey bureau of justice statistics. Retrieved from http://bjs.ojp.usdoj.gov/content/pub/pdf/cpp99.pdf

McEwen, Tom. (April, 1996). National data collection on police use of force. Bureau of Justice Statistics, 1-100. Retrieved from http://bjs.ojp.usdoj.gov/content/pub/pdf/ndcopuof.pdf

United States Census Bureau. (2009). Juvenile Arrests for Drug Abuse Offenses: 1980 to 2009. [Data File]. Retrieved From http://www.census.gov/compendia/statab/2012/tables/12s0326.pdf

 

6 Comments

  1. Delano Mccray -
    June 27, 2014 at 12:00 am

    Good report, you really spent your time making this a polished piece. Kudos

    • D. Manu-
      June 27, 2014 at 1:59 am

      Appreciate it

  2. Kinnie Burrows -
    June 27, 2014 at 12:00 am

    So, are we supposed to feel bad for people who break the laws now? (Yawn…)

    • D. Manu-
      June 27, 2014 at 1:10 am

      Think you missed the point of the paper

  3. Malchy Ornelas-
    June 27, 2014 at 2:30 am

    “The use of hyper-aggressive tools and tactics results in tragedy for civilians and police officers, escalates the risk of needless violence, destroys property and undermines individual liberties” Agree with this 100%

    • D. Manu-
      June 27, 2014 at 5:29 am

      Yeah, I’d say 99% of the time, that’s the case