Call to End Police Excess Use of Force
With the exception of the military, only police are empowered to use lethal force. Amnesty International recently published a report entitled Deadly Force which analyzes state Use of Force statutes. Given the critical life and death nature of this issue, state statutes are remarkably brief and perfunctory. Nine states and the District of Columbia have no Use of Force statute.
Our criminal justice system confronts a crisis of legitimacy which is especially dire in minority communities. The most visceral issue fueling public debate is the lack of accountability for the use of lethal force by police officers. The term “rogue” officer has become a cliché as taxpayers pay millions for civil lawsuits involving excess use of force while continuing to pay the salaries of a small number of repeat offenders who remain on the force protected by powerful police unions.
Police work is more dangerous in the United States than in other countries because of the vast availability of guns, and the extreme impoverishment of minority communities. This situation is exacerbated by the community perception that police officers are above the law, and that the criminal justice system lacks fairness, justice and accountability.
The phrase “Sanctity of Life” comes from our federal Department of Justice. The final report of the national Task Force on 21st Century Policing states:
“Not only should there be policies for deadly and non-deadly uses of force, but a clearly stated “sanctity of life” philosophy must also be in the forefront of every officer’s mind.”
These three words have a long history in the struggle for human rights and recently as a slogan for opponents of abortion. However, following the Justice Department report, “Sanctity of Life” has been embraced as a rallying cry to stop police excess use of force. A Google search produces pages of quotes by media outlets, police departments, and advocacy groups using these inspiring words to support a growing national reform movement.
Proposed “Sanctity of Life” Program for Delaware
Our vision is that “Sanctity of Life” will become both a coalition of supporting organizations and a program of action. This program may include legislative action, administrative action by the Delaware Department of Justice, and reform programs of local police departments. Some aspects of this program will hopefully emerge as a cohesive package, but this campaign will require action on multiple fronts for an extended period of time. The action agenda will evolve based on the success or failure of specific measures.
The remainder of this paper proposes an initial formulation of the proposed action program which includes four pillars designed to start rebuilding a foundation of trust and legitimacy:
- New Comprehensive Delaware Use of Force code
- Discipline Before Prosecution
- Use of External and Independent Investigators and Prosecutors
- Professional Liability Insurance Requirement for Police Officers
All of these components have been adopted or proposed in other states, providing models which can be implemented in Delaware. In combination, these measures offer a way forward for a society poised on the brink of chaos.
New Delaware Use of Force Code
The Delaware Black Caucus recently called for a new Use of Force code. The current Delaware statute is less than two pages long. The Delaware code is completely subjective based on whether the police officer “believes that such force is immediately necessary”. Only five of the 41 states with a Use of Force statute lack any objective standard of reasonableness, necessity, or probable cause. The Delaware code includes no warning requirement and makes prosecution of a police shooting impossible.
Resulting from pressures from the Freddie Gray case, the City of Baltimore adopted a new Use of Force code for their Police Department on July 1, 2016. Both the NAACP and the ACLU were consulted in developing the new code, which also complies with the recommendations of the President’s Task Force on 21st Century Policing. The City also consulted with the Justice Department which is currently investigating the Baltimore Police Department. The new14 page Baltimore code includes the following provisions:
- Stresses de-escalation and emphasizes the “sanctity of life”
- Recognizes that people who suffer from mental health problems or addiction may appear to act erratically without posing an actual threat.
- Requires other officers to intervene when they observe excess use of force
- Defines four distinct categories of force and the reporting requirements associated with each
- Requires officers to call for medical assistance
- Use of force must be proportional and warning must be provided
- Ensures that each use of force by an officer is entered into a “tracking database” to identify problem officers
- Provides for training on the new policy and de-escalation techniques
- Addresses protection of bystanders
Delaware should develop a new Use of Force Code based on the Baltimore model. This should be a state code enacted by the state legislature which would apply to all of the fifty plus police departments in Delaware.
This would be a revolutionary break from the current approach used by other states. All of the 41 state codes are brief and vague providing little guidance for local police departments.
The sanctity of life and use of lethal force are fundamental issues which don’t vary based on geography, community size, or any other variables. The new Delaware code should contain provisions for the state Department of Justice to assist local departments with training and reporting.
Discipline Before Prosecution
Chicago police officer Jason Van Dyke, who faces murder charges after shooting Laquan McDonald, had at least 17 citizen complaints against him, according to a University of Chicago database of police records. He had never been reprimanded.
The Chicago Police Accountability Task Force found that 10% of Chicago police officers had more than 10 reported complaints against them. Less than 2% of complaints led to disciplinary action.
Thomas Webster was the Dover police officer who injured a suspect by kicking him in the face when he was already subdued. Officer Webster had 29 excess use of force violations during a ten year period. When the kicking incident occurred, he was on probation for dumping an intoxicated person in a nature preserve at night.
Rather than dismiss Officer Webster, the City of Dover indicted him twice. His abusive history could not be presented to the grand juries, and a high school crony of Webster’s testified as an expert trainer representing the State Police. As a result, both indictments failed. Webster’s attorneys then claimed that he had been proven innocent complicating disciplinary action. The City eventually paid over $200,000 to obtain Webster’s resignation.
It would have been more effective and appropriate to dismiss Officer Webster before attempting to indict him. Chuck Wexler, the executive director of the Police Executive Research Forum, recently stated that the bar for acceptable police work “can’t simply be whether what he did is criminal or not”.
Dismissal would be based on the officers entire record and should be a much quicker process, immediately removing the officer from the street and the payroll. Criminal prosecution can follow dismissal without legal complications. According to a recent New York Times article, police departments are becoming more willing to dismiss officers for use of force violations.
Use of External and Independent Investigators and Prosecutors
Another reason excess use of force cases are seldom prosecuted is that police investigators and prosecutors are colleagues of the defendants. Many excess use of force cases are committed by repeat offenders who remain on the force. Their colleagues realize that they will be working with these offenders in the future and seek to maintain amicable relationships.
Mechanisms to reduce this type of cronyism have been adopted in many areas of society. Judges and corporate directors are expected recuse themselves when impartiality is an issue. Jurors are dismissed if they have relationships with defendants. Politicians put their stock in blind trusts. Efforts are made to track political donations. The expectation is that fairness requires impartiality and objectivity.
The third pillar of the Sanctity of Life program would require that all Delaware police excess use of force cases be outsourced to other jurisdictions. The State Department of Justice would oversee these arrangements between Delaware counties and cities and could directly investigate and prosecute many of these cases. Funds could be transferred between jurisdictions to cover the costs.
Similar arrangements are in place in other states. In Maryland, Howard and Montgomery Counties have agreed to exchange police shooting cases to achieve impartiality. In Georgia, the State Bureau of Investigation handles many police excess use of force cases.
Professional Liability Insurance Requirement for Police Officers
The Chicago Police Accountability Task Force reported in April, 2016:
“There continues to be an unacceptably high number of lawsuits filed against the City and individual police officers every year. Despite this persistent problem, which results in the outlay of tens of millions of dollars every year, the Chicago Police Department does not employ a systematic tool for evaluating risk issues identified in lawsuits.”
There were more than 400 lawsuits against the Chicago police in 2013 alone with more than $150 million in settlements paid out that year.
In Minneapolis, grassroots organizations are campaigning to put the Police Insurance Amendment on the ballot this November (See Police Insurance Amendment). During the past seven years, city taxpayers have paid out more than $20 million to settle cases of police brutality in addition to paying the salaries of a small group of rogue officers who continue to be employed by the city police force.
Minneapolis self- insures for these settlements. As an innovative risk management strategy, the Police Insurance Amendment would require calculation of liability insurance premiums for police officers. The city would fund the base rate for this coverage, avoiding any out of pocket costs for the vast majority of police officers.
These insurance rates would increase for each case of excess force against an officer until abusive officers were forced to leave as a result of high insurance premiums. Many people including Doctors, lawyers, accountants, and general contractors are required to carry professional liability insurance. This is the fourth element of the Sanctity of Life program providing a strategy for holding police officers accountable for misconduct.
This proposed Sanctity of Life program goes to the heart of minority concerns about the use of lethal force by the police. No other state has implemented such a bold sweeping proposal.
All four of these programs could be enacted individually and piecemeal. That would be the normal “politically realistic” approach to “reform”. We could devote the next decade to cobbling together a few reform initiatives as the racial dialogue continued to deteriorate.
However, it’s possible that, confronted with a sweeping reform program, police unions might reconsider their endless fight to defend rogue officers. The costs and risks of that strategy continue to escalate. The vast majority of police officers must yearn for separation from the “bad apples”.
Passage and effective implementation of the proposed Sanctity of Life program would ultimately result in a huge difference for the people of Delaware. All Delaware communities would recognize the elimination of a hateful irritant in our politics and a fundamental step toward fairness. Both our quality of life and our business climate would benefit from becoming a national leader in achieving racial justice.